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Appeals Court Reverses Award for Attorney Fees for Overbroad ESI Requests: eDiscovery Case Law

In Bertoli et al. v. City of Sebastopol, et al., No.A132916 (Ct. App. Ca. Jan. 20, 2015), the California Court of Appeals, while not disagreeing with the trial court’s finding that the plaintiff’s ESI request was “unfocused and nonspecific, unduly burdensome, and an alarming invasion of privacy rights”, disagreed that their Public Records Act (PRA) requests were “clearly frivolous” and reversed the trial court’s order for attorneys fees and costs.

Case Summary

The plaintiff, after being hit by a car while walking in a crosswalk, was rendered permanently physically and mentally disabled. Her attorney served PRA requests seeking electronically stored information (ESI) on the defendant in anticipation of her personal injury lawsuit. There was an initial request for collision reports, about which the defendant maintained it provided several records and offered for the plaintiff’s attorney to indicate which additional collision reports he wanted.

When the plaintiff served an additional 62 ESI requests, including requests to search private computers that the plaintiff believed could contain responsive documents, the defendant objected to the 62 separate requests as “overly extensive, overly broad and, in some cases, unlimited in time.” The defendant made suggestions to narrow the requests, and the plaintiff offered to pay for a third-party eDiscovery vendor to assist with the searches, but the disputes continued. Once the personal injury lawsuit was filed, the defendant set a deadline for the plaintiff’s attorney to complete his review. Ultimately, the parties could not reach an agreement on the ESI requests and the plaintiff filed a Petition for Writ of Mandate under the Public Records Act for relief.

In June 2011, the trial court – having “carefully weighed the competing interests at stake” – denied the petition. In its order, it noted that the defendant had shown a “remarkable degree of openness and cooperation” in its response to the plaintiff’s PRA requests and characterized the relief sought in the Petition as an “unprecedented fishing expedition” which would “constitute an alarming invasion of property rights, an extravagant use of limited city resources, and an unwanted green light for immoderate discovery.” Pursuant to the Public Records Act, the trial court deemed the petition “clearly frivolous” and ordered for the plaintiff to pay the defendant’s requested attorneys’ fees, which had risen from the initial request of $42,280 to $82,380. The plaintiff appealed the trial court’s finding of clear frivolousness in August 2011 and appealed the amount of fees awarded in March 2012.

The appellate court’s analysis agreed with the trial court’s finding that the plaintiff’s requests constituted an undue burden, but stated that “the mere fact that the Petition was impermissibly overbroad and therefore properly rejected by the trial court does not necessarily mean that it was entirely without merit. Rather, as stated above, it is an open issue whether and to what extent public records may be obtained from private computers under the PRA. Further, there was evidence that several current employees had responsive documents that were not disclosed and that certain city council members, at least, used their home computers for City-related business. Thus, despite the overbreadth of the Petition, it was not, on that basis, clearly frivolous.” As a result, the appellate court reversed the order for attorneys fees and costs.

So, what do you think? Should the unduly burdensome requests be enough to justify reimbursement of attorneys fees or was the appellate court decision correct? 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. eDiscoveryDaily 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.

Despite Weather and Travel Issues, Exhibitors Happy with Last Week’s LegalTech: eDiscovery Trends

As we noted on Monday, for the second year in a row, weather caused significant travel delays and cancelled flights at last week’s LegalTech® New York 2015 (LTNY). As a result, on the last day of the show, I decided to tour the exhibit hall and ask some of the exhibitors their thoughts about this year’s show, how it compared to previous years and whether American Lawyer Media (ALM) should consider moving LTNY to a different (i.e., warmer) time of year. Here is some of their feedback.

Good Exhibit Hall Traffic, Despite the Travel Issues: By and large, most exhibitors I spoke to were happy with the traffic in the exhibit hall and felt it was comparable to previous years. Kelly Struck, Marketing Director at Huron Legal, noted that “we did have weather issues again early on, especially in Chicago where I came from. Despite that, traffic in the exhibit hall appeared to be steady and picked up on Wednesday as more people made it into New York for the show.” Shawn Gaines, Director of Marketing at kCura also observed that “the traffic around the booth was solid” and that their Relativity hands-on labs in Concourse A “got crowded, with particular interest in Relativity Analytics (standing room only!), Processing, and Binders”.

And, Debbie Caldwell, Communications Director at Exterro, was even more positive, stating that “Traffic was great for Exterro, despite the weather and travel issues. We had good traffic in the booth, back-to-back meetings throughout the show in our suites and great attendance at our Judges Survey Release press reception. We had a great show!”

Most Exhibitors Also Happy with ALM and the Hilton: By and large, exhibitors were happy with ALM’s handling of the show and the Hilton Hotel as the venue. Caldwell noted that “ALM always makes the process easy. Henry (Dicker, Executive Director of LegalTech) does a great job in orchestrating the event and taking care of the vendors. Exterro is happy with how the show is managed.”

Struck observed that “It seemed like there were a lot more advertisements this year, in the lobby and everywhere else as well”, but didn’t seem to mind, noting that “it’s a great opportunity to show the brand.” And, Alon Israely, Manager of Strategic Partnerships with BIA (and a thought leader interviewee again this year), stated that “the Hilton is a great venue” and expressed “a ton of confidence” in ALM “continuing to do a great job, even with the management changes resulting from the senior people retiring this year.”

Not everyone was completely happy, however. One area that was suggested where ALM could improve was the number of ALM contacts for exhibitors to coordinate with and communication issues internally within ALM, which one exhibitor noted cost them to lose the booth spot that they’ve had for years when updated contact information didn’t get to the correct contact in time.

For the Most Part, Exhibitors Prefer to Keep the Show at the Same Time of Year: While acknowledging the weather has caused travel issues, most exhibitors would prefer to keep the show at the same time of year. Struck noted that “I have heard a few other people suggest that. But, I think the majority of people coming to LegalTech expect it to be around the beginning of February and set their calendars accordingly.” She also observed that it’s “probably less expensive for ALM to host the show this time of year as well” and indicated that “if ALM were to ever consider moving the show, they would have to plan for it years in advance to give attendees and exhibitors time to adjust their schedules, product launches, etc.”

While acknowledging that he was “stranded in North Carolina en route” this year, Gaines indicated that “we do plan a lot of our activity around the show, so it’s good to have a consistent date that’s not next to other events like ILTA or our own user conference, Relativity Fest.” Caldwell was strongly against any move, stating that “having LegalTech New York take place at the beginning of the year is positive for Exterro and the industry. It allows us to share our vision early in the year with customers, prospects and the media on our corporate and product initiatives. Moving it to a different time could be disruptive and does not guarantee that we will eliminate weather or travel issues.”

So, what do you think? Should ALM consider moving LTNY to a different time of 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. eDiscoveryDaily 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.

Data Breaches are Up, But Records Breached are Down: Cybersecurity Trends

One of the most discussed topics at last week’s LegalTech® New York 2015 (LTNY) was cybersecurity. And, with good reason, as it seems as though every other day, there is another report of a data breach (last week, it was health insurance company Anthem with an estimated 80 million people affected). Now, 27001 Academy has prepared an informative infographic with stats regarding 2014 data breaches and an offer of a free eBook with cybersecurity best practices.

Here are some key statistics:

  • Data Breach Incidents in 2014: The number of reported incidents rose from 614 in 2013 to 783 in 2014 – a 27.5% increase.
  • Records Exposed in 2014: However, the reported number of records exposed in breaches dropped from 91,982,172 in 2013 to 85,611,528 in 2014 – a 7.1% decrease.
  • Breaches by Month: Last year, January had the highest number of breaches with 113, 40 more than the next highest month (August with 73). February had the lowest number of breaches with 44.
  • Breaches by Industry: Breaches in each measured industry rose last year, with government/military breaches showing the biggest percentage rise – over 53% from 60 in 2013 to 92 in 2014. The healthcare industry had the greatest number of breaches – 333 in 2014, up from 271 in 2013 (a 22.9% increase). The potential cost for breaches in the healthcare industry is estimated to be as much as $5.6 billion annually.
  • Breaches by State: California organizations were more than twice as likely as any other state to experience a breach – 120 total breaches affecting 112 organizations. Texas and New York were second and third with 57 and 50 breaches respectively. It appears that Rhode Island was the only state without a reported data breach in 2014.

For the full infographic, click here. Thanks to Sharon Nelson and her always excellent Ride the Lightning blog for the tip – her post regarding the infographic is here.

On the page with the infographic, 27001 Academy also provides a link to download a free eBook, 9 Steps to Cybersecurity, written by Dejan Kosutic. It’s designed to be a primer on cybersecurity basics, written in an easy-to-understand format. It’s 80 pages, so it’s pretty comprehensive, covering topics ranging from types of security incidents to cybersecurity myths and basics to steps and standards for implementing. I downloaded it, looks promising.

So, what do you think? Has your organization, or have you personally, suffered a data breach? 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. eDiscoveryDaily 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.

Judge Shows Her Disgust via “Order on One Millionth Discovery Dispute”: eDiscovery Case Law

In Herron v. Fannie Mae, et al., 10-943 (RMC) (DC Feb. 2, 2015), DC District Judge Rosemary M. Collyer issued an order titled “Order on One Millionth Discovery Dispute” where she decided that “Contrary to its usual practice, the Court will rule immediately, in writing” on the latest discovery disputes between the plaintiff and defendant.

In this case, the plaintiff, a former vice president who returned to the defendant in 2009 as a consultant to help implement U.S. Department of Treasury mortgage foreclosure prevention programs, sued the defendant for wrongful termination, claiming she was fired after reporting what she believed were problems with how the defendant was handling those programs. In her four page order, Judge Collyer made clear her disgust with the process, as follows:

“The parties are inching towards the end of discovery, the time for which has been extended repeatedly. Most recently, this Court declared that all discovery will terminate at the end of February. The parties bring yet another discovery dispute before the Court and request a telephone conference (the Court’s preferred method of resolving discovery issues).

Much as the Court admires the advocacy of counsel, it is exhausted with these disputes. Contrary to its usual practice, the Court will rule immediately, in writing, based on Plaintiff’s letter dated January 30, 2015 (Letter) addressed to the Court and attachments and Fannie Mae’s letter dated February 2, 2015 addressed to the Court and attachments.”

With regard to the plaintiff’s request for “both documents and testimony from a Fannie Mae representative about . . . [t]he process by which bonuses were awarded…[and] [t]he criteria used by management…showing how corporate goals regarding the MHA Program (including HAMP…) were met”, Judge Collyer rejected the plaintiff’s requests stating:

“Even as narrowed by the parties, these deposition and document-request topics are highly overbroad…Her allegations of wrongful termination from a single contractor position on a single Program do not entitle her to the entirety of the confidential internal presentations and deliberations on executive bonuses by the Board of Directors for all of Fannie Mae’s executive staff for two years…These topics could have, and should have, been laser focused. They were not and will not be enforced.”

Judge Collyer also ruled on the plaintiff’s requests for 30(b)(6) witness testimony, granting the request on a limited basis in one instance and requiring the defendant to designate two previous deponents as 30(b)(6) witnesses to the extent of their prior testimony or produce a different 30(b)(6) witness.

So, what do you think? Are there WAY too many disputes regarding discovery today? 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. eDiscoveryDaily 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.

Miscellaneous Observations About LegalTech: eDiscovery Trends

Did you attend LegalTech® New York 2015 (LTNY) last week? We did, and for the fifth year in a row(!), we interviewed several industry thought leaders to get their thoughts on the significant trends for 2015. We will be publishing a schedule for those interviews in the next few days and will publish those interviews over the next few weeks. As for the show itself, as I fly back from NYC (after my weekend here with my lovely wife!), here are some of my miscellaneous observations.

Weather: For the second year in a row, weather caused significant travel delays and cancelled flights. Some were delayed for several hours in arriving, while others never made it at all. Should American Lawyer Media (ALM) consider moving LTNY to a different time of year to minimize the travel issues? That was one question that I asked the thought leaders and I got varied responses (more to come on that). Despite the weather issues, LTNY seemed to be better attended than last year, at least based on my conversation with others who made it to the show both years.

Although I was in that group that was delayed for several hours, at least I made it this year! 🙂

Hilton and the demise of the Lobby Lounge: For those of us who have been coming to LTNY for years and look to have meetings there, we have gotten used to the Hilton layout and the availability of the lounge beyond the lobby and the Bridges bar for available seating for those meetings. For the meetings that I had scheduled, I had proposed the lobby lounge as the location (you could usually get a seat in there if you were patient). Imagine my surprise to find that the lobby lounge had been removed and replaced by a much smaller executive lounge (which was only open to hotel guests). Furthermore, the Bridges bar was reserved by ALM for private events the entire show and other options (such as the hotel restaurant) were diminished too. Obviously, ALM has no control over the removal of the lobby lounge, but, hopefully next year, they will avoid reserving the Bridges bar again. Meetings are an important part of the show and you need places to meet.

Free Judges Panel Sessions: Kudos to ALM, however, for scheduling three free judges panel sessions that were CLE or Ethics credit eligible, that included several notable judges, including Judge Andrew J. Peck, Judge James C. Francis and Judge Frank Maas of New York, Ronald J. Hedges (Former New Jersey Magistrate Judge), Judge Elizabeth D. LaPorte of California and the retired Judge John Facciola of the District of Columbia. The sessions gave all attendees the opportunity to hear the judges’ viewpoints about key cases in 2014 that dealt with spoliation sanctions, their thoughts about why the proposed FRCP amendments may not change anything and what’s wrong with discovery and how attorneys (and even judges) address it. Terrific information for those who attended.

In the What’s Wrong with Discovery session, Judge Facciola had (in my opinion) the quote of the show in discussing attorneys’ failure to limit the scope of documents for review in discovery when he said “I want attorneys that go for the jugular, not those who go for the capillaries.” Good stuff.

So, what do you think? Did you attend LTNY last week? What are your thoughts about the show? 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. eDiscoveryDaily 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.

When Claiming Workplace Injury, Facebook Posts Aren’t Handy, Man: eDiscovery Case Law

In Newill v. Campbell Transp. Co., 2:12-cv-1344 (W.D. Pa. Jan. 14, 2015), Pennsylvania Senior District Judge Terrence F. McVerry ruled on the plaintiff’s motion in limine on miscellaneous matters by allowing the defendant to introduce Facebook posts into evidence that related to the plaintiff’s physical capabilities, but not those that related to his employability.

Case Summary

In this workplace injury case related to the plaintiff’s employment with a shipping company, the plaintiff sought, via his motion, to preclude the defendant from introducing several of his Facebook posts into evidence, on the basis that they are irrelevant or would be unfairly prejudicial. The defendant responded that the posts were relevant to show that following the accident the plaintiff retained the ability to engage in physical activities despite his claim of injury.

The defendant sought to introduce Facebook posts where the plaintiff discussed “physically taxing activities” such as painting, landscaping, flooring, going to the gym, undercoating a truck, and “going physical”. The plaintiff also apparently advertised his services as a handyman and suggested that “no job [was] 2 big or 2 small.” The Defendant also argued that the posts were relevant to the question of the plaintiff’s employability, which the defendant’s expert testified would have been improved if he adopted a “sensible social medial presence” and eliminated posts containing “casual or rough language” on Facebook.

Judge’s Decision

Judge McVerry found that “posts from Plaintiff’s Facebook account ‘that reflect physical capabilities inconsistent with a plaintiff’s claimed injury are relevant.’”  He also stated, however:

“While the Court understands that Plaintiff may be embarrassed by the content of some of his posts, that alone is not a sufficient basis for excluding the posts under Rule 403. If, at trial, Defendant attempts to introduce a particular Facebook post that Plaintiff feels is unduly embarrassing, the issue of the admissibility can be re-raised at that time and the Court reserves the discretion to exclude it pursuant to Fed. R. Evid. 611 (granting the court discretion to bar harassment and undue embarrassment of a witness).

As to Defendant’s second argument, the Court is not convinced that Costantini should be permitted testify about Plaintiff’s inane postings on Facebook when discussing the issue of his employability. To be sure, potential employers do often consider an applicant’s Facebook account when making a hiring decision. But Costantini’s testimony that Plaintiff’s Facebook account “probably is not giving the employers a good impression” is nothing more than speculation. There is nothing in the record actually linking his Facebook posts to his inability to obtain new employment until recently or suggesting that the types of jobs for which Plaintiff was qualified would be harder to obtain because of his Facebook posts. Without such a link having been established, Costantini has no basis to offer an opinion on these matters.”

As a result, Judge McVerry denied the portion of the plaintiff’s motion “insofar as it seeks to prevent Defendant from introducing Facebook posts that tend to contradict his claimed damages”, but granted the portion with regard to the defendant’s expert being permitted to rely on Plaintiff’s Facebook posts in assessing his employability.

So, what do you think? Should the defendant be prohibited from introducing posts that demonstrate the plaintiff’s employability? 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. eDiscoveryDaily 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.

Thursday LTNY 2015 Sessions: eDiscovery Trends

As noted yesterday and Tuesday, LegalTech® New York 2015 (LTNY) is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show. This is the last day to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and over 199 exhibitors providing information on their products and services.

While at the show, we will (also for the fifth year in a row!) be interviewing several industry thought leaders to see what they think are the significant trends for 2015 and, which of those are evident at LTNY. After the show, we will announce the series of thought leader interviews and identify when each will be published. Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 33 hits. So, there is plenty to talk about! Sessions in the main conference tracks include:

10:30 – 11:45 AM:

Information Governance in the Now

According to the Information Governance Initiative’s Annual Report, Information Governance (IG) practitioners “are taking action on a wide variety of IG projects right now. On average, SMBs have four IG projects under way, and large organizations have six.” This session will explore where IG stands today as a concept, as a practice and as a market; uncovering the projects that are getting funding, the technologies that are enabling action and the governance structures that are getting the most attention.

At the end of this session you will have a clear picture of where the IG market really is so you can catch the wave and get started delivering value to your clients and organizations right now.

Speakers to include: Julie Colgan (Discussion Leader), Head of Information Governance Solutions, Nuix; James Arnold, Managing Director of Forensic Services, KPMG; Lauren Barnes, VP Records and Information Management, Credit Suisse; Jay Brudz, Partner, Drinker Biddle & Reath LLP; Fred Pulzello, President, ARMA International.

Transforming Discovery Through Data Management

With data growing exponentially, legal counsel is struggling to control eDiscovery costs. However, they can now effectively find potentially relevant documents earlier in the process with greater accuracy than ever before.   By combining technology and analytical expertise, it is now possible to gather early stage legal intelligence to develop case strategy and limit that amount of data promoted to review.

Speakers to include: Dave Deppe, President, UnitedLex Corporation; Jacob J. Herstek, Vice President and Senior Legal Counsel, HSBC Bank USA, NA; Lynn S. Looby, Managing Counsel for Litigation, Regulatory & U.S. Operations, The Dow Chemical Company; Farrah Pepper, Executive Counsel – Discovery, General Electric Company.

12:15 – 1:30 PM:

The Convergence of Information Security and IG

Gartner analysts Ted Friedman and Tom Scholtz have forecast that “by 2017, 40% of Global 1000 organizations will have aligned their information management governance and information security governance programs.” However, this prediction raises a variety of questions about how and why such a convergence might occur.

Nuix engaged Ari Kaplan Advisors to interview Fortune 1000 IS leaders to answer some of these questions for a benchmarking report and, among other conclusions, found that organizations know they must adopt a new set of information security disciplines to protect high-value and high-risk data. IG professionals must also play a critical role in helping to identify where important data is stored, understanding what it’s worth and making sure it’s protected.

Information security disciplines are at the heart of a good information governance framework. And failing to implement a robust information governance framework can be costly if it fails to prevent a data breach or minimize its consequences.

Speakers to include: Ari Kaplan (Discussion Leader), Principal, Ari Kaplan Advisors; Jim Kent, Global Head of Investigations & Cybersecurity, Nuix; Andre McGregor, Special Agent, Federal Bureau of Investigation; Alison North, Director, ARMA International Board of Directors, CEO, AN Information Ltd.; Amie Taal, Vice President, Security and Investigations Deutsche Bank.

Protecting Employee and Customer Privacy in an Era of ‘Big Data’ Monitoring

Corporations and governments are accelerating the collection and analysis of data about our personal and professional lives. The Internet of Things has not only enhanced consumer convenience, but also spawned a vast network of data collection mechanisms, such as smart phones, computer operating systems, websites, point-of-sale terminals, email accounts, social media postings, watches, automobile navigation systems and even asthma inhalers. One of the greatest challenges to an organization is balancing the benefits—such as product development, sales and marketing—of this data avalanche with the need to protect the privacy of its employees and customers.

In this session, panelists will review the myriad ways in which we are monitored and how that information is used, and share best practices in policy and security controls to protect employees and customers. The panelists will address the following:

  • How and why we are monitored — and how that information is used
  • Best practices in policy and security controls to protect employees and customers
  • Effective privacy, computer, BYOD and network usage policies
  • Reasonable expectations of privacy
  • The evolution of U.S. privacy laws and their effects on employees and consumers

Speakers to include: Jason R. Baron (Discussion Leader), Of Counsel, Drinker Biddle & Reath LLP; Alan Friel, Partner, BakerHostetler; Julia Horwitz, Consumer Protection Counsel, Electronic Privacy Information Center (EPIC); Heidi Wachs, Special Counsel, Jenner & Block; Sheryl Ann Yamuder, Senior Managing Counsel, Privacy & Data Protection, MasterCard.

2:00 – 3:00 PM:

Information Governance 2020 and Beyond

Over the next decade, technological and economic changes will challenge businesses; new data consumers, types, sources and endpoints will require businesses to continually adapt their information governance and security policies or risk losing data integrity. But what does the future really hold for Information Governance (IG)?

This panel of IG visionaries will look into their crystal balls and deliver predictions about IG of the future, considering topics such as cloud, mobility and the Internet of Things (IoT).

This is a must-attend session that will get your creativity flowing and inspire you to embrace the future to deliver best-in-class governance to your organizations and clients.

Speakers to include: Julie Colgan (Discussion Leader), Head of Information Governance Solutions, Nuix; Barclay Blair, Founder and Executive Director, IG Initiative, Principal and Founder, ViaLumina LLC; Chris Dale, The eDisclosure Information Project; Leigh Isaacs, Director of Records and Information Governance, Orrick, Herrington and Sutcliffe LLP, Advisory Board Member, IG Initiative.

In addition to these, there are other eDiscovery-related sessions today. For a complete description for all sessions today, click here.

eDiscoveryDaily will also be “tweeting” periodically throughout LTNY, so feel free to check out our updates at twitter.com/Cloud9Discovery.

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

Wednesday LTNY 2015 Sessions: eDiscovery Trends

As noted yesterday, LegalTech® New York 2015 (LTNY) is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show. There’s still time to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and over 199 exhibitors providing information on their products and services.

While at the show, we will (also for the fifth year in a row!) be interviewing several industry thought leaders to see what they think are the significant trends for 2015 and, which of those are evident at LTNY. After the show, we will announce the series of thought leader interviews and identify when each will be published. Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 66 hits. So, there is plenty to talk about! Sessions in the main conference tracks include:

10:30 – 11:45 AM:

Data Preservation in a User-Centric Mobile, Social and Cloud World

The cloud is no longer a novelty, social is not just for social, and mobile is fast becoming central, yet for eDiscovery professionals these environments are still often seen as unavoidable annoyances. Learn how successful corporations are implementing proactive litigation readiness plans for cloud solutions, social networks, and mobile endpoints — saving time, cost, risk, and hassles while letting their users work the way they want to.

Speakers to include: Neil Etheridge (Discussion Leader), Vice President, Product Marketing, Recommind; Robert Owen, Partner , Sutherland Asbill & Brennan LLP; Dave Packer, Sr. Director, Product Marketing, Druva; Alex Ponce de Leon, Discovery Counsel, Google; Justin Somaini , Chief Trust Officer, Box, Inc..

Analytics and Information Governance

As information proliferates, organizations need to adopt enterprise-wide Information Governance practices and make proactive policy decisions about what information is important to the organization, how to keep and manage it, and how to defensibly dispose of it. Data analytics are a smart way to gain an understanding of an organization’s information, both broadly and specifically, and to analyze or categorize it in order to facilitate business decisions, support defensible disposition, and more. This interactive panel discussion will address the information governance challenges organizations face and how analytics can help, including specific examples such as defensible destruction.

Speakers to include: Laurie Fischer (Discussion Leader) , Managing Director, Huron Legal; Jon M. Talotta , Partner, Hogan Lovells; Brett Tarr, Counsel Litigation & E-Discovery , Caesars Entertainment; Kurt Wilhelm , Director – Information Governance, NBCUniversal.

Predictive Coding: Succeed or Screw Up? How to Evaluate (and Validate) Results in Your Next Predictive Coding Project

It is no longer a matter of “if” you use predictive coding; “how” you conduct predictive coding is the critical question. With the training, prediction, and evaluation stages being an iterative process, how do you validate results and know when to stop review? This session will help you understand the methods and key metrics for evaluating effectiveness in your next predictive coding project.

Speakers to include: Jonathan Sachs (Discussion Leader), Senior Account Executive, Kroll Ontrack; Cliff Dutton, Senior Vice President & Director of eDiscovery and Vendor Management , AIG; Shannon Kirk, E-Discovery Counsel, Ropes & Gray; Ralph Losey, Shareholder, Jackson Lewis P.C.

12:30 – 1:30 PM:

Future-Proof Your eDiscovery Practices – OPEN TO ALL

It’s clear that the eDiscovery landscape is constantly changing. Trends and vendors often come and go, leaving organizations in a constant state of reacting to what’s next. Those organizations that are prepared for evolving conditions can better balance value and risk – thus future proofing their eDiscovery practices. In this panel, learn from proven eDiscovery experience and historical perspective on how the market has evolved in the past two decades – and how previous trends and market forces will help determine where the industry may be headed. You’ll leave knowing what your organizations can do now to minimize future risk and how to take full advantage of the value that emerging technologies will offer.

Speakers to include: George Tziahanas (Discussion Leader) , VP, Legal and Compliance Solutions, HP; Patrick Collins, Partner, Perkins Coie; Dr. Bruce V. Hartley, CISSP, VP, Celerity Consulting Group, Inc.; Jessica Watts, Associate General Counsel,, eDiscovery HP.

2:00 – 3:15 PM:

User-Defined Predictive Coding for Fact Finding and Prioritized Review

It’s easy to think of machine learning only when reviewing for large productions, however, forward-thinking users are applying it to drive internal investigations, analyze government-seized data stores, quality-check manual review, and much more. Come learn creative strategies for combining search and analytics for powerful fact finding and cost savings across a range of real-world use cases.

Speakers to include: Hal Marcus (Discussion Leader), Product Marketing Manager, Recommind; Florinda Baldridge, Global Director of Practice Support, Norton Rose Fulbright; Jay Brudz, Partner, Drinker Biddle & Reath LLP; David L. Stanton, Partner, Pillsbury Winthrop Shaw Pittman LLP.

Analytics to Enhance Litigation and Discovery Strategy

The “buzz” in the past few years has been about predictive coding as an analytical tool to facilitate document review. Predictive coding is just one of many analytical tools that can aid the discovery process, however, and document production is just one use for discovery analytics. This panel will discuss the range of analytical tools for discovery and creative ways they can be used to assist with early case assessment, litigation strategy, and discovery strategy, allowing counsel to better focus on developing the legal case and clients to make more informed decisions about case disposition. As an added bonus, their effective use can result in significant cost savings.

Speakers to include: Nathalie Hofman (Discussion Leader) , Managing Director, Huron Legal; Ignatius Grande, Senior Discovery Attorney/Director of PracticeSupport, Hughes Hubbard & Reed LLP; Mollie C. Nichols , Partner, Redgrave LLP; Glenn O’Brien , Director, Electronic Discovery, Liberty Mutual Insurance; Farrah Short, Associate , Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C..

Machine Learning from Pre-Discovery to eDiscovery and Everything In-between

Find out how machine learning is impacting all areas of information governance, realizing the promises of knowledge management, records management, and eDiscovery.

  • How can machine learning enable organizations to get ahead of the curve in eDiscovery and be better prepared for a matter?
  • How does machine learning facilitate areas of information governance such as defensible deletion, surveillance and compliance, records management and applying retention policies to electronic archiving?
  • How do corporate counsel and attorneys apply machine learning capabilities to unstructured content to better address information governance requirements?

Hear our expert panelists share ways machine learning technology is being applied throughout all areas of the information governance spectrum, with compelling, pragmatic examples and case studies demonstrating an entirely new paradigm with unstructured corporate content.

Speakers to include: Ari Kaplan (Discussion Leader), Principal, Ari Kaplan Advisors; Jeff Fehrman, Chief Strategy Officer, Mindseye; Constantine Pappas, Product Specialist, Computer-assisted Review, kCura; Rick Wilson, Vice President of Strategy and Solutions, Sherpa Software.

Global: Around the World in Less than 80 Minutes – Delivering Successful eDiscovery Projects Across the Globe

EDiscovery is approached differently in almost every country around the world, and international eDiscovery best practices are evolving quickly in response to international litigation and investigations. Knowing the country’s approach to eDiscovery is integral to ensuring that a multi-national eDiscovery project goes smoothly. This panel, comprised of eDiscovery experts from around the world, will discuss:

  • The biggest differences in approaches to eDiscovery in the US, EU and APAC
  • How the extraterritorial effect of US regulation affects global companies’ eDiscovery tactics
  • Why eDiscovery is on the rise in European countries like Germany and France and how to handle local requirements
  • Political, cultural and legislative sensitivities towards eDiscovery in China, Japan, Singapore and other countries in the APAC region – and how to deal with them

Techniques for managing eDiscovery in international cases and on multiple fronts.

Speakers to include: Andrew Szczech (Discussion Leader) , Director of Legal Technologies Services, EMEA, Legal Technologies, Kroll Ontrack UK; Brian Calla, Member, Eckert Seamans; Kate Chan, Managing Director, Kroll Ontrack APAC; Emily A. Cobb, Associate, Ropes & Gray; Jerami D. Kemnitz, Senior Discovery Counsel – Global Head of eDiscovery, Wells Fargo.

3:45 – 5:00 PM:

User-Centric Protocols for Advanced Review

Recent noteworthy judicial opinions have a lot to say about practical aspects of predictive coding-enabled review – such as search term culling, seed set sharing, workflow transparency, ESI orders, and the timing of discovery challenges. Come learn what these opinions do (and don’t yet) tell us, and how the new CTRL Initiative’s open-source guidelines can help users chart a flexible course for advanced review.

Speakers to include: Philip Favro (Discussion Leader), Senior Discovery Counsel, Recommind; Honorable James C. Francis IV, U.S. Magistrate Judge , U.S. District Court, Southern District of New York; Dawson Horn, III, Esq., Associate General Counsel, AIG; Darin Sands, Shareholder, Lane Powell.

Information Governance: Applying Technology to Information Governance: Data Management, Litigation Holds, Records Retention and Destruction

This panel will help attendees understand how information governance maturity can be developed from much of what we have learned in eDiscovery. The panel will talk about what information governance (IG) is, how to develop IG programs, and what IG projects companies are undertaking today, such as defensible data remediation, intelligent migration, and using eDiscovery and analytics technology for information governance purposes.

Speakers to include: Cathleen Peterson (Discussion Leader), Senior Vice President, Consulting and Advanced Review Services, Kroll Ontrack; Bennett Borden, Partner, Drinker Biddle & Reath LLP; Jessica Escalera, Global Head of Legal Discovery Operations, Barclays; D. Casey Flaherty, Corporate Counsel, Kia Motors America, Inc.; David L. Stanton, Partner, Pillsbury Winthrop Shaw Pittman LLP.

In addition to these, there are other eDiscovery-related sessions today. For a complete description for all sessions today, click here.

eDiscoveryDaily will also be “tweeting” periodically throughout LTNY, so feel free to check out our updates at twitter.com/Cloud9Discovery.

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

Welcome to LegalTech New York 2015!: eDiscovery Trends

Today is the start of LegalTech® New York 2015 (LTNY) and, for the fifth year in a row, eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show. Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered. If you’re in the New York area, I encourage you to check out the show – there are a number of sessions (both paid and free) available and over 199 exhibitors providing information on their products and services.

While at the show, we will (also for the fifth year in a row!) be interviewing several industry thought leaders to see what they think are the significant trends for 2015 and, which of those are evident at LTNY. After the show, we will announce the series of thought leader interviews and identify when each will be published. Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 84 hits. So, there is plenty to talk about! Sessions in the main conference tracks include:

10:30 – 11:45 AM:

Information Management in the Age of the New Attorney

Some of the biggest changes currently in the legal IT environment are coming from the changing expectations and methods by which today’s attorneys want to work. As a new generation of attorneys rises to firm management, how does traditional information management need to change to accommodate the always-on, mobile, social, attorney? How can firms take advantage of new approaches to gain greater agility and better meet attorney – and client – demands for access to key information?

In this panel discussion, we will explore these topics with a panel of CIOs and IT Directors, and review what their organizations are doing to meet attorney and client expectations today as well as plans and ideas for the (near) future.

Speakers to include: Dan Carmel (Discussion Leader), Head of ECM Strategy and Solutions, HP Big Data; Marat Borodovskiy, IS Director, Prudential; Bill Koch, Director of Technology Services, Womble Carlyle Sandridge & Rice, LLP; Glenn O’Brien, Director, Electronic Discovery, Liberty Mutual Insurance; Usman Nayyar, Director of Applications and Technology Solutions, Proskauer.

Information Governance and E-Discovery – Working Across Disciplines to Improve Outcomes and Add Value

In conversations among thought-leading legal professionals and technologists, the subject of “information governance” features prominently. But how do these leaders define information governance, and why has the topic become so important? And what is the relationship to e-discovery?

In this program, panelists at the forefront of information governance will discuss the various ways in which their discipline relates to e-discovery. They will explain how a sound information governance initiative can help make e-discovery more efficient and effective, and less expensive. And they will help us understand how, in turn, a thoughtful and strategic e-discovery program can contribute back to the organization’s information governance. The panel will offer practical advice on breaking down silos and working across disciplines to create and enhance that information value loop.

Speakers to include: Maureen O’Neill (Discussion Leader), Senior Vice President, Discovery Strategy, DiscoverReady; Lauren Barnes, VP Records and Information Management, Credit Suisse; Juliet M. Hanna, Associate General Counsel, Fannie Mae; Julie Heller, VP & Global Head of eDiscovery Programs, Legal Operations Center, AIG.

Advice from Counsel: Case Studies of What’s Working in E-Discovery Today

Forget the theoretical. This is pure brass tacks. E-discovery practitioners are streamlining their processes, using advanced technology, and dramatically reducing the cost of e-discovery. In-house counsel, litigation support, outside counsel and service providers are all playing a part in transforming chaotic e-discovery procedures into a regular business process. This case study session will showcase what’s working today for corporations and law firms handling e-discovery matters large and small. Results from the 6th annual Advice from Counsel study on in-house e-discovery trends will supplement the case study discussions.

Speakers to include: Sophie Ross (Discussion Leader), Senior Managing Director, FTI Technology; Shari Aberle, Partner, Dorsey; Ari Kaplan, Principal, Ari Kaplan Advisors; Nicole Schaefer, Litigation Support Director, Janney Montgomery Scott.

Data Analytics for eDiscovery and Investigations – A Practical Approach

Data analytics on structured information (Oracle/SQL databases, mainframe data, etc.) is a specialized discipline that can help companies address issues related to litigation and sophisticated fraud and white collar crime. Forensic data analytics professionals must understand issues particular to the review of data contained in a structured format (i.e., enterprise financial systems and operational data stores). As with traditional computer forensic analysis on unstructured data, successful structured data eDiscovery is comprised of key work steps including identification, preservation, collection, processing, hosting, review, and production of structured data. This discussion will provide an overview and practical approach detailing the processes related to the analysis of structured data for eDiscovery and investigations.

Speakers to include: Tom Keegan (Discussion Leader), Principal Forensic Advisory Services, KPMG LLP; Elizabeth Asali, Litigation Counsel, GlaxoSmithKline; Jeffrey Greene, Shareholder, Greenberg Traurig; Wendy Predescu, Principal, KPMG LLP.

12:30 – 1:30 PM:

Taking TAR to the Next Level: Recent Research and the Promise of Continuous Active Learning — OPEN TO ALL

Three years ago, panelists Judge Andrew J. Peck and Maura R. Grossman introduced Technology-Assisted Review (TAR) to a standing-room-only crowd at LegalTech 2012. Since then, TAR—with its promise of substantial reduction in review costs—has entered the mainstream of high-volume discovery, both in the U.S. and around the world.

In 2015, the grand challenge is to make TAR even more accessible and more effective while addressing the real-world limitations of first-generation TAR products. Our panel will talk about the latest research on TAR protocols, focusing on newer methods like Continuous Active Learning, which have been shown to identify relevant documents more quickly, and to further reduce review costs. Discussion topics include:

  • How does Continuous Active Learning work, and how does it differ from earlier TAR protocols?
  • Which kinds of seed are most effective in TAR training, random or judgmental and why?
  • Are subject-matter experts required for TAR training, or can review teams do the job just as well?
  • How will the courts evaluate TAR and Continuous Active Learning? What kind of evidence is required to move best practices forward?
  • What kinds of savings can you expect from Continuous Active Learning versus other protocols? Should different protocols be used for different types of cases?

Join us for an informative hour focusing on the future of TAR for 2015 and beyond. Learn about the first peer-reviewed study comparing TAR protocols and how its findings may be applied in judicial and corporate settings. Pick up your free guide to Continuous Active Learning so you can learn more about this powerful new option for TAR review.

Speakers to include: John Tredennick (Discussion Leader), CEO and Founder, Catalyst Repository Systems, Inc.; Gordon V. Cormack, Professor, David R. Cheriton School of Computer Science, University of Waterloo; Maura R. Grossman, Of Counsel, Wachtell, Lipton, Rosen & Katz; Susan Nielsen Hammond, Records, eDiscovery & Forensics Counsel, Regions Financial Corporation; Honorable Andrew J. Peck, Magistrate Judge, United States District Court for the Southern District of New York.

2:00 – 3:15 PM:

Counsel’s Secret Weapon in the Information Wars: Governance Strategies and Tactics

Organizations face increasing pressure when responding to litigation, investigations, and regulatory compliance demands. Factors adding to this pressure are shortened time frames, increasingly disparate information, and tight budgets. It is essential to proactively prepare for these challenges with an information governance strategy that ensures your data can be accessed, analyzed, and understood quickly and cost effectively.

In this session, learn how to evaluate technology solutions, best practices for deploying these solutions in conjunction with IG policies, and how you can gain strategic insight from your data.

Speakers to include: Matt Levy (Discussion Leader), eDiscovery Subject Matter Expert, HP; Jason R. Baron, Of Counsel, Drinker Biddle & Reath LLP; Gareth Evans, Partner, Gibson, Dunn & Crutcher LLP; Marty Provin, Executive VP, Jordan Lawrence; Jason Van Volkenburgh, Associate General Counsel, Hunter Douglas.

E-Discovery Insourcing vs Outsourcing

This session will focus on the key issues attorneys, paralegals and litigation support staff should consider when deciding whether to insource or outsource e-discovery. While they may seem elementary, time, cost and complexity continue to be some of the greatest challenges e-discovery practitioners face today. Join us as our panel discusses some of the key elements to consider when deciding on an e-discovery solution.

Speakers to include: Edward Sohn (Discussion Leader), Global Director, Legal Managed Services, Thomson Reuters; Anthony J. Diana, Partner, Reed Smith; Glen McFarlane, Managing Director, JPMorgan Chase; Karin Scholz Jenson, Partner and National Co-Leader, E-Discovery Advocacy and Management Team, BakerHostetler.

The Predictive Coding Soundtrack: Rewind, Play, Fast-Forward

Over the last several years, predictive coding dominated conversations among e-discovery practitioners. But as we move into 2015, it seems the hype about predictive coding – and the too-good-to-be-true marketing promises – have quieted down. So what are we talking about now? What are organizations actually doing today with predictive coding? And how have these conversations about predictive coding impacted other aspects of e-discovery?

This program will take a look back at the promises made about predictive coding as these powerful tools came to the e-discovery market. And then our panel of experts – including corporate practitioners who actively use predictive coding – will discuss how the tools are being deployed today. They will explain what they have learned about the most effective ways to “train” predictive coding software; how to combine predictive coding with keyword terms and other methods of narrowing and searching data sets; the importance of statistical testing and validation in e-discovery generally; and developing a strategy for involving the other side (or not) in an e-discovery process. Finally, the panel will take a look towards the future, and explore how they expect to use predictive coding and other analytics tools going forward.

Speakers to include: Amy Hinzmann (Discussion Leader), Senior Vice President, Managed Review, DiscoverReady; Marla Bergman, Vice President, Associate General Counsel, Goldman Sachs; Elizabeth A. Jaworski, Director, Legal Operations, Motorola a Lenovo Company; Daniel S. Pariser, Partner, Arnold & Porter.

3:45 – 5:00 PM:

How to Take Advantage of the Cloud for eDiscovery

Today’s eDiscovery professionals must be able to quickly respond to requests and investigations, while reducing costs at the same time. But technology can be the stumbling block that prevents many from achieving these goals—especially when legal teams spend more time and money managing hardware and software than they spend on their litigation process. Fortunately, cloud environments offer a more secure and cost-effective way.

Join this panel session to learn how emerging cloud-based, self-service deployments can empower legal professionals to focus on managing the eDiscovery process while allowing the experts to manage the technology operations and security.

Speakers to include: Eric Crespolini (Discussion Leader), eDiscovery Subject Matter Expert, HP; Johnny Lee, MD, Forensic, Investigations & Dispute Services, Grant Thornton LLP; Robert Levy, Counsel, Civil Justice Reform and Law Technology, Exxon Mobil Corporation; Alan M. Winchester, Partner, Harris Beach PLLC.

E-Discovery Challenges in Government Investigations and Regulatory Matters

When dealing with the government in an investigation or regulatory matter, organizations face unique challenges around e-discovery. The lack of e-discovery expertise among many government legal professionals, and the lack of technical support and resources available to them, can make it difficult for companies to work with the government in connection with discovery requests. Other issues that compound this difficulty include:

  • The “cooperative” posture often associated with governmental investigations;
  • the increased transparency requested by the government;
  • the broad breadth and compressed timelines associated with many government requests; and
  • the government’s increasing tendency to request the use of specific discovery protocols, including technology assisted review.

In this program, the panelists will explore how organizations can overcome these challenges and more effectively handle discovery in government matters. They will discuss how to identify the scope of the government’s request and work to appropriately tailor a discovery solution that is reasonable, cost efficient, and defensive – and if necessary, educate the agency about e-discovery along the way. The program will also explain the obligations to preserve information relevant to a government matter, and the ramifications – including criminal liability – for spoliation of evidence. Finally, the panelists will discuss the role of predictive coding and other advanced analytics in government discovery.

Speakers to include: Matt Miller (Discussion Leader), Senior Vice President, Discovery Strategy; DiscoverReady, Josh Durham, Partner, Poyner Spruill LLP; Jill Griset, Partner, McGuire Woods; Allan Hsu, Director, Fannie Mae; Jerami D. Kemnitz, Senior Discovery Counsel – Global Head of eDiscovery, Wells Fargo; Michelle Spak, Associate General Counsel, Duke Energy Corporation.

Killing Two Birds With One Stone: Optimizing Information Governance for Easier E-Discovery

From protecting sensitive customer data from cyber threats, to complying with data privacy laws, corporate information governance projects are quickly becoming “must do” projects. How can legal teams leverage these information governance projects for their own e-discovery needs? What are some of the practical steps corporations can take to produce measurable benefits from information governance? How do these information governance projects impact the role of outside counsel?

Attend this session to hear corporate practitioners discuss best practices for implementing practical information governance programs and their impact on e-discovery.

Speakers to include: Jake Frazier (Discussion Leader), Senior Managing Director, FTI Technology; Michael Lisi, Director of Litigation Support, Fidelity Investments; Rachel Rubenson, Vice President-Global eDiscovery Counsel, Barclays; Joseph Steffan, Chief Privacy Compliance Officer, Morgan Stanley.

Achieving Global Consistency Across your eDiscovery Processes

As multi-national companies continue to manage a portfolio of litigation and investigations, it has become a priority for organizations to achieve global consistency in their eDiscovery processes. Key elements in putting in place a global approach to eDiscovery include defensible processes, predictable outcomes, reduced cost and gain in efficiencies.

This presentation will detail how to achieve global consistency and ideas on areas of focus including use of discovery playbooks, standard operating procedures, checklists, using a consistent technology workflow, and the role of outside service providers.

Speakers to include: Lucie Miller (Discussion Leader), Director, KPMG LLP; Denise Backhouse, Shareholder, Littler Mendelson; Kelly Clay, Senior Counsel and Director of Information Management, GlaxoSmithKline; Michelle Mattei, Associate Director, Healthcare Compliance, Medivation, Inc.; Jeff Sharer, Partner, Sidley Austin LLP.

In addition to these, there are other eDiscovery-related sessions today. For a complete description for all sessions today, click here.

eDiscoveryDaily will also be “tweeting” periodically throughout LTNY, so feel free to check out our updates at twitter.com/Cloud9Discovery.

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

Court Awards Attorney Fees to Defendant After Delayed Production by Plaintiff: eDiscovery Case Law

In Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp., 1:14-cv-00151 (USDC W.D. Mich. Nov. 7, 2014), Michigan Magistrate Judge Phillip J. Green awarded some (but not all) of the attorney fees requested by the defendant after the plaintiff “made repeated promises to produce the subject documents”, but “failed to do so for nearly three months after the deadline for responding to Westport’s Rule 34 request” and “compliance was obtained only after Westport filed its motion to compel”.

Case Summary

In the reinsurance dispute described by the judge as a “document-intensive case”, the parties filed a Joint Status Report on May 7, 2014 in which they agreed “to make available” by May 28, certain identified documents without the need of a formal request for production. The deadline for voluntary production was extended at the plaintiff’s request to June 4 and the defendant completed its voluntary production of documents on that date. However, the plaintiff failed to do so.

The defendant sent the plaintiff inquiries as to the status of its production on June 10, 12 and 16. After receiving no response, on June 17, the defendant served a Rule 34 request for a production of documents, including those identified by the plaintiff for voluntary disclosure. The Rule 34 request incorporated the parties’ previous agreement to produce electronic documents in single page TIFF format with DII load file or native format within their original file structure. The defendant sent a reminder to the plaintiff on July 11 of their agreement to voluntarily produce the documents identified in the Joint Status Report and “specifically asked MMMIC’s counsel to advise if that understanding was incorrect”, which the plaintiff apparently never did.

The parties agreed to give the plaintiff an additional 14 days to produce responsive documents and, on August 1, the plaintiff responded to the Rule 34 request, indicating that “many documents [were] ready for production,” but also requested a protective order to prevent dissemination of the documents to persons not involved in the case. On August 6, the parties filed a joint proposed protective order regarding the handling of “Discovery Material”, but reminders from the defendant to the plaintiff to produce documents on August 6, 11 and 14 received no reply from the plaintiff, so on August 25, the defendant filed a motion to compel. After further back and forth, the parties agreed to an order on October 2, which noted that the production would be made no later than October 10. On October 13, the plaintiff finally produced 66,000 pages of documents in electronic format on three CDs.

Judge’s Decision

Judge Green stated that “MMMIC made repeated promises to produce the subject documents, beginning with the May 7, 2014, Joint Status Report, but it failed to do so for nearly three months after the deadline for responding to Westport’s Rule 34 request, and more than four months after the deadline for voluntary production set by the Court in the Case Management Order. Even then, compliance was obtained only after Westport filed its motion to compel, and on the eve of the scheduled hearing.

That constitutes a sufficient basis for awarding reasonable attorney’s fees and expenses to Westport.”

The defendant sought $10,399.75 in attorney’s fees and expenses under Rule 37(a)(5)(A), but Judge Green, after a detailed review of the hours expended (and factoring in a 7.5% discount), awarded $3,180.72.

So, what do you think? Should the fees have been awarded for the plaintiff’s late production? 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. eDiscoveryDaily 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.