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eDiscoveryDaily

The Importance of Metadata – eDiscovery Best Practices

This topic came up today with a client that wanted information to help justify the request for production from opposing counsel in native file format, so it’s worth revisiting here…

If an electronic document is a “house” for information, then metadata could be considered the “deed” to that house. There is far more to explaining a house than simply the number of stories and the color of trim. It is the data that isn’t apparent to the naked eye that tells the rest of the story. For a house, the deed lines out the name of the buyer, the financier, and the closing date among heaps of other information that form the basis of the property. For an electronic document, it’s not just the content or formatting that holds the key to understanding it. Metadata, which is data about the document, contains information such as the user who created it, creation date, the edit history, and file type. Metadata often tells the rest of the story about the document and, therefore, is often a key focus of eDiscovery.

There are many different types of metadata and it is important to understand each with regard to requesting that metadata in opposing counsel productions and being prepared to produce it in your own productions.  Examples include:

  • Application Metadata: This is the data created by an application, such as Microsoft® Word, that pertains to the ESI (“Electronically Stored Information”) being addressed. It is embedded in the file and moves with it when copied, though copying may alter the application metadata.
  • Document Metadata: These are properties about a document that may not be viewable within the application that created it, but can often be seen through a “Properties” view (for example, Word tracks the author name and total editing time).
  • Email Metadata: Data about the email.  Sometimes, this metadata may not be immediately apparent within the email application that created it (e.g., date and time received). The amount of email metadata available varies depending on the email system utilized.  For example, Outlook has a metadata field that links messages in a thread together which can facilitate review – not all email applications have this data.
  • Embedded Metadata: This metadata is usually hidden; however, it can be a vitally important part of the ESI. Examples of embedded metadata are edit history or notes in a presentation file. These may only be viewable in the original, native file since it is not always extracted during processing and conversion to an image format.
  • File System Metadata: Data generated by the file system, such as Windows, to track key statistics about the file (e.g., name, size, location, etc.) which is usually stored externally from the file itself.
  • User-Added Metadata: Data created by a user while working with, reviewing, or copying a file (such as notes or tracked changes).
  • Vendor-Added Metadata: Data created and maintained by an eDiscovery vendor during processing of the native document.  Don’t be alarmed, it’s impossible to work with some file types without generating some metadata; for example, you can’t review and produce individual emails within a custodian’s Outlook PST file without generating those out as separate emails (either in Outlook MSG format or converted to an image format, such as TIFF or PDF).

Some metadata, such as user-added tracked changes or notes, could be work product that may affect whether a document is responsive or contains privileged information, so it’s important to consider that metadata during review, especially when producing in native format.

Here’s an example of one case where the production of metadata was ordered and an answer to the question “Is it Possible for a File to be Modified Before it is Created?” (you might be surprised at the answer).

So, what do you think? Have you been involved in cases where metadata was specifically requested as part of discovery? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Plaintiff Can’t “Pick” and Choose When it Comes to Privilege of Inadvertent Disclosures – eDiscovery Case Law

In Pick v. City of Remsen, C 13-4041-MWB (N.D. Iowa Sept. 15, 2014), Iowa District Judge Mark W. Bennett upheld the magistrate judge’s order directing the destruction of an inadvertently-produced privileged document, an email from defense counsel to some of the defendants, after affirming the magistrate judge’s analysis of the five-step analysis to determine whether privilege was waived.

Case Background

In this wrongful termination case, the plaintiff served a request for production of documents that included “all relevant non-privileged emails initiated by or received by the City of Remsen in regard to the Plaintiff and/or any of the issues set forth in Plaintiff’s complaint”.  Among the documents produced was an email, dated July 14, 2012, from defense counsel to Remsen Utility Board members and others discussing an upcoming Utility Board meeting.  Defense counsel learned of the email’s inadvertent disclosure on March 25, 2014, when the plaintiff served supplemental discovery responses on defense counsel and contacted plaintiff’s counsel within 34 minutes of the discovery.

Defense counsel asked that the email be destroyed. The plaintiff’s counsel suggested the email could be redacted to protect “advice relating to procedure,” but indicated he intended to rely on the remainder of the email unless ordered otherwise by the court.  The defendants’ filed a motion requesting that the court order the email’s destruction as an inadvertently produced privileged document, which the magistrate judge granted.

Judge’s Ruling

The Magistrate Judge, Leonard Strand, had applied the five-step analysis to determine the proper range of privilege to extend.  Those five factors were, as follows:

  1. The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production: Judge Strand found that the privileged email was “inconspicuously located among various non-privileged email messages”, which, based on the fact that defendants turned over to their counsel 440 pages of documents (including 183 pages of email messages, some pages of which contained more than one email), was upheld as “completely fair and accurate”;
  2. The number of inadvertent disclosures: Since there was only one inadvertent disclosure, Judge Bennett upheld the ruling as “not clearly erroneous”;
  3. The extent of the disclosures: Though the email was sent to six people, all six were privileged recipients of the email, so Judge Bennett upheld the ruling as “not clearly erroneous”;
  4. The promptness of measures taken to rectify the disclosure: Because defense counsel contacted plaintiff’s counsel just 34 minutes after learning of the email’s inadvertent disclosure and requested its destruction, Judge Bennett upheld the ruling as “not clearly erroneous”; and
  5. Whether the overriding interest of justice would be served by relieving the party of its error: Judge Strand, finding that the plaintiff “clearly has other evidence that he intends to rely on in support of his various claims”, ruled in favor of the defendant in this factor as well, which Judge Bennett upheld.

Judge Bennett summarized as follows: “The email is classic legal advice that should be protected by the attorney-client privilege…This interest of justice would be harmed here by permitting Pick to use the email at trial…Given the important nature of the attorney-client privilege and the manner in which the email was inadvertently disclosed, Judge Strand’s conclusion that the overriding interest in justice factor weighed against waiver is not clearly erroneous. Accordingly, Pick’s objection is overruled.”

So, what do you think?  Did defense counsel’s quick reaction to the disclosure save the email’s privileged status?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

What’s in a (File) Name? More Than You Think – eDiscovery Best Practices
 

When you’ve worked in litigation support and eDiscovery as long as some of us have, you just think a little bit differently – even when it comes to naming files and folders on your computer.  In her excellent Litigation Support Guru blog, Amy Bowser-Rollins provides some best practices to think more like a litigation support person.

In her post Litigation Support Naming Conventions, Amy shares her database mindset with these concepts:

  1. Using Underscores Instead of Spaces: Amy illustrates how you can use underscores instead of spaces in your file and folder names (e.g., Custodian_Name_Shared_Drive Custodian_Name.zip).  So, why would that be important?  Simply, empty space typically signifies the “end” of a character string.  When an application sees a space, it sees the “end” and stops processing. When the full string is not processed, it won’t be properly represented on your computer screen, won’t copy into emails automatically as hyperlinks, etc.  Some people prefer dashes instead of underscores as underscores can be difficult to detect when the name is underlined.
  2. Zero Filled Numbers: Is it apparent why this one is important?  It’s for sorting purposes.  In names, numbers sort left to right instead of numerically, so AnnualReport10 comes before AnnualReport8 and AnnualReport9 (because the first digit of ‘10’ – ‘1’ – comes before ‘8’ and ‘9’).  To get them to sort properly, include leading zeroes (e.g., AnnualReport08, AnnualReport09 and AnnualReport10).
  3. Dates in Year-Month-Day Format: This is another naming convention that is recommended for sorting purposes, again because numbers in names sort left to right instead of numerically (e.g., 11-11-2014-IncomingData would sort before 03-09-2012-IncomingData).  Naming the files in Year-Month-Day format (e.g., 2012-03-09-IncomingData or 20120309-IncomingData) ensures that they are properly date sorted.  Personally, I prefer dates with dashes for readability.

Using Amy’s tips can help you think more like the geeks that some of us are!  Thanks, Amy!

So, what do you think?  Do you have any file and folder naming preferences?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Want an Automated, Easy and Inexpensive Way to Process Your Data? Read On – eDiscovery Trends

A couple of months ago, we had a laugh at Ralph Losey’s post that took a humorous look at the scenario where it’s Friday at 5 and you need data processed to be reviewed over the weekend.  It was a funny take on a real problem that most of us have experienced from time to time.  But, there may be a solution to this problem that’s automated, easy and inexpensive.

Anytime we talk about something that relates to our company, CloudNine Discovery, we always add the “shameless plug warning” to let people know that the topic relates to our software or a service we offer.  If you’re a regular reader of our blog, you know it doesn’t happen that often.  But, we have just made a major announcement that we believe will interest many of you.

Today, we are officially announcing the release of OnDemand Discovery®, our new application that enables you to upload your native data and have it processed and loaded directly into OnDemand®, our cloud-based online review tool.

It’s a 100% automated upload process that includes native file extraction from container files (such as Outlook PSTs and ZIP Files), metadata & text extraction and indexing, OCR of image files, duplicate identification and HTML creation, streamlining the process to get started reviewing documents for discovery.  The process automatically notifies you when we’ve received your data and then again when we’ve loaded and indexed it and when all processing (including advanced analytics for early data assessment) is complete.  So, you never have to wonder about the status of your processing job.

It’s ideal for situations where you receive data late on a Friday afternoon and have to get it ready to review over the weekend and also ideal for preparing small batches of files for review without having to run them through cumbersome processing software built for multiple gigabytes, not a small batch of files.  OnDemand Discovery is designed to handle two megabytes, two gigabytes or two hundred gigabytes or more!

There are three easy steps to give it a try:

  1. Sign up for a free account here.  You will receive an email with your credentials (including temporary password), to get started.
  2. When you first log in, you’ll see a button to “Upload Data”.  That will take you to a form to download the OnDemand Discovery client (which is a Windows based client application that resides on your desktop) for uploading data for processing.  Download and install the client to upload data.
  3. Once the client is downloaded and installed, launch the client, log in with your newly created credentials and simply follow the wizard prompts to upload the desired data set and put it into the project of your choice (which you can create if it doesn’t already exist).  It’s that easy!

For more information, feel free to check out our press release on our news page here.  You can also contact me at daustin@cloudnincloudnine.comm for more information as well.

And, 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Judgment of $34 Million against Insurer Dodging Malpractice Claim is a “Dish” Served Cold – eDiscovery Case Law
 

In my hometown of Houston, attempting to deny coverage to a client successfully sued for discovery-related negligence cost OneBeacon Insurance Company a $34 million judgment by a federal jury.

As reported by Robert Hilson in ACEDS (Insurer dodging malpractice claim must pay $34 million for attorney’s discovery blunder, subscription required), OneBeacon Insurance Company attempted to rescind a policy from T. Wade Welch & Associates (TWW), the Houston-based law firm that was sued by former client Dish Network in 2007 after one of its attorneys provided incomplete discovery responses to Dish’s adversary. That failure resulted in so-called “death penalty” sanctions against Dish in a contractual interference case brought by Russian Media Group (RMG), which accepted a $12 million settlement.

After Dish won an arbitration award against TWW for that amount last year, OneBeacon sued TWW in federal court seeking a declaration the law firm voided coverage on its policy by failing to disclose the Dish sanctions prior to entering into that policy. OneBeacon alleged that TWW should have known that those penalties in the Dish case would give rise to a malpractice claim, which would trigger a so-called “prior knowledge exclusion” in the insurance policy that rescinds coverage, the insurer claimed. It also accused the firm of making misrepresentations on its policy application.

However, a jury in the US District Court for the Southern District of Texas begged to differ, finding that:

  • OneBeacon failed to move for a swift settlement with Dish when its liability had become clear; and
  • OneBeacon’s failure to settle the Dish claim amounted to gross negligence.

The jury assessed damages as follows:

  • TWW’s lost profits sustained in the past: $3 million;
  • TWW’s lost profits that, in reasonable probability, it will sustain in the future: $5 million;
  • Sum assessed in exemplary damages for OneBeacon’s gross negligence: $5 million;
  • Sum assessed in exemplary damages because OneBeacon’s conduct was committed knowingly: $7.5 million.

TOTAL: $20.5 million.  Plus, although the OneBeacon policy had a $5 million limit, the “Stowers Doctrine,” which holds that an insurer undertaking the defense of an insured has the obligation to make a good faith attempt to settle the insured’s claim within those policy limits, additionally put the company on the hook for the entire $12.6 million arbitration settlement.  Ouch!

This was after US district Judge Gray Miller, in June, denied summary judgment to OneBeacon, finding that it was not clear from the evidentiary record whether TWW attorneys should have reasonably foreseen the malpractice claim that eventually arose from the Dish sanctions.

For more information on the case, including the jury’s verdict, click here (subscription required).

So, what do you think?  Should OneBeacon have been “on the hook” for the settlement amount or should the “prior knowledge exclusion” have excluded them?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Dealing with the Departed – eDiscovery Best Practices
 

Having addressed this recently with a client, I thought this was a good topic to revisit here on the blog…

When litigation hits, key activities to get a jump on the case include creating a list of key employees most likely to have documents relevant to the litigation and interviewing those key employees, as well as key department representatives, such as IT for information about retention and destruction policies.  These steps are especially important as they may shed light on custodians you might not think about – the departed.

When key employees depart an organization, it’s important for that organization to have a policy in place to preserve their data for a period of time to ensure that any data in their possession that might be critical to company operations is still available if needed.  Preserving that data may occur in a number of ways, including:

  • Saving the employee’s hard drive, either by keeping the drive itself or by backing it up to some other media before wiping it for re-use;
  • Keeping any data in their network store (i.e., folder on the network dedicated to the employee’s files) by backing up that folder or even (in some cases) simply leaving it there for access if needed;
  • Storage and/or archival of eMail from the eMail system;
  • Retention of any portable media in the employee’s possession (including DVDs, portable hard drives, smart phones, etc.).

As part of the early fact finding, it’s essential to determine the organization’s retention policy (and practices, especially if there’s no formal policy) for retaining data (such as the examples listed above) of departed employees.  You need to find out if the organization keeps that data, where they keep it, in what format, and for how long.

When interviewing key employees, one of the typical questions to ask is “Do you know of any other employees that may have responsive data to this litigation?”  The first several interviews with employees often identify other employees that need to be interviewed, so the interview list will often grow to locate potentially responsive electronically stored information (ESI).  It’s important to broaden that question to include employees that are no longer with the organization to identify any that also may have had responsive data and try to gather as much information about each departed employee as possible, including the department in which they worked, who their immediate supervisor was and how long they worked at the company.  Often, this information may need to be gathered from Human Resources.

Once you’ve determined which departed employees might have had responsive data and whether the organization may still be retaining any of that data, you can work with IT or whoever has possession of that data to preserve and collect it for litigation purposes.  Just because they’re departed doesn’t mean they’re not important.

So, what do you think?  Does your approach for identifying and collecting from custodians include departed custodians?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image © Warner Bros.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Most Big Companies Have a Big Data Program, But They’re Not Crazy about the Term “Big Data” – eDiscovery Trends

Yesterday, we discussed some amazing facts about just how “BIG” that Big Data has gotten to be.  Today, let’s look at what BIG companies are doing about BIG data.

NewVantage Partners has just released a new survey (their third annual survey) of Fortune 1000 senior business and technology executives regarding their companies’ investments in Big Data entitled Big Data Executive Survey 2014: An Update on the Progress of Big Data in the Large Corporate World.  Survey respondents are Fortune 1000 senior business and technology executives who have a vested interest in the success of an organization’s data and analytics, and Big Data, initiatives.  This year, 59 companies participated, with 125 individual executive respondents.  78% of the participating organizations were in the financial services sector, including companies such as American Express, Fidelity Investments, General Electric, Johnson & Johnson, Lincoln Financial and Wells Fargo.  Here’s a link to the Executive Summary for the report.

As noted in their press release, here are some key findings from the survey:

  • Big Data is Becoming Mainstream: Executives report that their corporate investments in Big Data are projected to grow from 35% to 75% by 2017 for investments greater than $10MM, and by a remarkable 6% to 28% for investments greater than $50MM.  67% of executives now report that they have Big Data initiatives running in production within the corporation.
  • Enthusiasm for Big Data Initiatives is Widespread: 82% of executives say that Big Data is “important or mission critical” to their organizations and 74% believe that its value “warrants serious attention.”
  • Business-IT Partnership is Key to Big Data Adoption: 88% of executives cited the importance of a strong business-IT partnership, with 77% citing business leadership and sponsorship, and partnership and organizational alignment as being the most critical factors in ensuring successful adoption of Big Data initiatives within the corporation.
  • The Chief Data Officer is an Emerging Role: 43% of executives report that their organization has established a Chief Data Officer (CDO) function, up from only 19% in 2012.

While big companies are embracing programs to manage Big Data, they’re not too keen on the term “Big Data”.  Fewer than 1 in 5 respondents (17%) feel that the name is “apt and descriptive,” and the rest dislike it (30%) or view it as overstated (53%).  As discussed in the Executive Summary, that finding raises the question whether everyone means the same thing when they’re talking about Big Data.  Regardless, it’s clear that large organizations are becoming seriously invested in programs to manage Big Data, regardless what they want to call it.

So, what do you think? Does your organization have a plan for managing Big Data?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Just How “BIG” is Big Data Getting? Check Out These Facts – eDiscovery Trends
 

If you work with information as an attorney, paralegal, litigation support professional or information technology (IT) professional, you have probably heard the term “big data” at an ever increasing rate.  But, just how BIG is big data getting?  Check out these facts.

An article by Bernard Marr on SmartData Collective (Big Data: 25 Amazing Need-to-Know Facts) provides some startling facts that you might be surprised to know.  Here are a few examples (with sources linked):

  • Every 2 days we create as much information as we did from the beginning of time until 2003;
  • Over 90% of all the data in the world was created in the past 2 years;
  • It is expected that by 2020 the amount of digital information in existence will have grown from 3.2 zettabytes today to 40 zettabytes (FYI, a zettabyte is one billion terabytes!);
  • The total amount of data being captured and stored by industry doubles every 1.2 years;
  • If you burned all of the data created in just one day onto DVDs, you could stack them on top of each other and reach the moon – twice;
  • 570 new websites spring into existence every minute of every day;
  • 1.9 million IT jobs will be created in the US by 2015 to carry out big data projects. Each of those will be supported by 3 new jobs created outside of IT – meaning a total of 6 million new jobs thanks to big data;
  • The big data industry is expected to grow from US$10.2 billion in 2013 to about US$54.3 billion by 2017.

With this level of data growth in the world, it’s no wonder that information governance and eDiscovery continues to be more challenging!

Check out Bernard’s article here for the entire list of 25 facts (it even includes a slide deck!).  And, thanks to Rob Robinson’s excellent ComplexDiscovery site for the heads up!

Tomorrow, we will take a look at what big companies think about (and what they’re doing about) big data.  Speaking of something BIG, check this out.

So, what do you think? Does your organization have a plan for managing big data?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Plaintiff Slips, But Defendant Takes the Fall – eDiscovery Case Law
 

In Riley v. Marriott Int’l, 12-CV-6242P (W.D. N.Y. Sept. 25, 2014), New York Magistrate Judge Marian W. Payson agreed with the plaintiffs that spoliation of data had occurred when the defendant failed to preserve video surveillance and “sweep logs” after one of the plaintiffs slipped and fell in the defendant’s hotel garage and that the defendant was at least grossly negligent for not preserving the information.  However, the judge denied the plaintiffs request for summary judgment, granting an adverse inference instruction instead.

Case Background

The plaintiffs filed suit, claiming a slip and fall accident had occurred at the defendant’s hotel in Maui when Linda Riley slipped and fell on the floor of the hotel's parking garage after exiting an elevator because the floor was wet from rainwater that had been permitted to pool there.  The defendant had a surveillance camera that monitored and recorded the area of Linda's accident twenty-four hours a day and the loss prevention manager at the hotel, testified that the recordings are maintained for thirty days, at which time the stored recordings are overwritten by new recordings.  

According to the loss prevention manager, once he is notified of a potential claim against the Hotel, he is responsible for preserving information relating to that claim and he testified that the video showed Linda's fall, her removal from the scene in a wheelchair, and hotel employees placing wet floor signs and sweeping up the water on the floor.  He also testified that he turned the recording over to the hotel's liability insurance carrier.  The plaintiffs stated that the defendant provided only approximately seven minutes of the footage, which begins about one minute before Linda's accident and filed the motion for summary judgment due to the unavailability of more of the video as well as “sweep logs” that kept a record of floor maintenance by employees.  The defendant did not dispute that the sweep logs and video footage existed or that it had a duty to preserve them, but objected, claiming that the plaintiffs failed to demonstrate prejudice due to the destruction of data.

Judge’s Ruling

Noting that “Marriott has not challenged the Rileys' contention that it had a duty to preserve the destroyed evidence” and that “no genuine question exists that video footage depicting the scene of an accident and sweep logs reflecting maintenance performed at the scene of an accident is likely to contain relevant information”, Judge Payson “easily conclude[d] that Marriott had a duty to preserve both the sweep logs and the video footage from the day of the accident”.  She also stated that “Marriott has failed to offer any justification for its failure to preserve the evidence” and “failed to offer any facts concerning how or why the evidence was destroyed”; therefore, “Marriott's failure to preserve the entire video footage relating to Linda's accident and the sweep logs for the day in question despite the Hotel's loss prevention employee's testimony that he knew that he had a duty to preserve relevant evidence constitutes, at a minimum, gross negligence.” 

However, Judge Payson stopped short of granting the plaintiffs motion for summary judgment, concluding “that an adverse inference instruction is both appropriate and sufficient to deter Marriott from similar future conduct, to shift the risk of an erroneous judgment to Marriott and to restore the Rileys' position in this litigation.”

So, what do you think?  Did the judge go far enough or should the motion for summary judgment have been granted?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Be Afraid, Be Very Afraid – eDiscovery Horrors!

Today is Halloween.  Every year at this time, because (after all) we’re an eDiscovery blog, we try to “scare” you with tales of eDiscovery horrors.  This is our fifth year of doing so, let’s see how we do this year.  Be afraid, be very afraid!

Did you know that overlaying Bates numbers on image-only Adobe PDF files causes the text of the image not to be captured by eDiscovery processing applications?

What about this?

Finding that the information was relevant and that the defendants “acted with a culpable state of mind” when they failed to preserve the data in its original form, New York Magistrate Judge Ronald L. Ellis granted the plaintiff’s motion for spoliation sanctions against the defendant, ordering the defendant to bear the cost of obtaining all the relevant data in question from a third party as well as paying for plaintiff attorney fees in filing the motion.

Or this?

It’s Friday at 5:00 and I need 15 gigabytes of data processed to review this weekend.

How about this?

Ultimately, it became clear that the defendant had not exported or preserved the data from salesforce.com and had re-used the plaintiffs’ accounts, spoliating the only information that could have addressed the defendant’s claim that the terminations were performance related (the defendant claimed did not conduct performance reviews of its sales representatives).  As a result, Judge Kemp stated that the “only realistic solution to this problem is to preclude Tellermate from using any evidence which would tend to show that the Browns were terminated for performance-related reasons”…

Or maybe this?

Could an “unconscionable” eDiscovery vendor actually charge nearly $190,000 to process 505 GB and host it for three months?  Could another vendor charge over $800,000 to re-process and host data (that it had previously hosted) for approximately two months?  Yes, in both cases (though, at least in the second case, the court disallowed over $700,000 of the billed costs).

Scary, huh?  If the possibility of additional processing charges for your PDF files, sanctions because you didn’t preserve data in its original format or preserve it in your cloud-based system or inflated eDiscovery vendor charges scares you, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Then again, if it really is Friday at 5:00 and you need 15 gigabytes of data processed to review this weekend (inexpensively, no less), maybe you should check this out.

Of course, if you seriously want to get into the spirit of Halloween, click here.  This will really terrify you!  (Rest in Peace, Robin)

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.