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eDiscoveryDaily

August Case Law Pop Quiz Answers! – eDiscovery Case Law

Yesterday, we gave you a pop quiz for the eDiscovery case law that we’ve covered in the past three months. If you’re reading the blog each day, these questions should be easy! Let’s see how you did. Here are the answers.

1.  In which case was the plaintiff was ordered to produce photos of herself that were posted to Facebook?:

A. Castillon v. Corrections Corporation of America, Inc.

B. In Cactus Drilling Co. v. Nat’l Union Fire Ins. Co.

C. Forman v. Henkin

D. None of the above

2.  In which case were sanctions imposed, even though no spoliation of evidence ultimately occurred?:

A. EEOC v. SVT, LLC

B. Procaps S.A. v. Patheon Inc.

C. Knickerbocker v Corinthian Colleges

D. None of the above

3.  In which case was over $50,000 of eDiscovery costs awarded to the prevailing party disallowed?:

A. Kwan Software Engineering v. Foray Technologies

B. Miller v. York Risk Servs. Grp.

C. United States v. Shabudin

D. In Progressive Cas. Ins. Co. v. Delaney

4.  In what case was one party ordered to continue to share a review database with the opposing party?:

A. Kwan Software Engineering v. Foray Technologies

B. Miller v. York Risk Servs. Grp.

C. United States v. Shabudin

D. In Progressive Cas. Ins. Co. v. Delaney

5.  In which case did the court disallow the plaintiff’s plan for predictive coding?:

A. Kwan Software Engineering v. Foray Technologies

B. Miller v. York Risk Servs. Grp.

C. United States v. Shabudin

D. In Progressive Cas. Ins. Co. v. Delaney

6.  In what case was the defendant’s request for a deposition to review whether the plaintiff had used “appropriate search tools for ESI discovery” denied?:

A. Koninklijke Philips N.V. v. Hunt Control Sys., Inc.

B. Elkharwily v. Mayo Holding Co.

C. Stallings v. City of Johnston City

D. Raines v. College Now Greater Cleveland, Inc.

7.  In which case did the court suggest the parties consider the use of predictive coding?:

A. Chapman v. Hiland Operating, LLC

B. FDIC v. Bowden

C. Downs v. Virginia Health Systems

D. Zeller v. So. Central Emergency Med. Servs. Inc.

8.  How much was Samsung and Quinn Emanuel ordered to pay for their “Patentgate” disclosure of confidential Apple and Nokia agreements?:

A. $1 million

B. $2 million

C. $3 million

D. $10 million

9.  In which case did the court not only reject the plaintiff’s request for sanctions, but issued a summary judgment in favor of the defendant?:

A. Zeller v. So. Central Emergency Med. Servs. Inc.

B. In re Text Messaging Antitrust Litig.

C. Brown v. Tellermate Holdings

D. Brookshire Bros., Ltd. v. Aldridge

10. In which case did the court issue a severe sanction against the defendant for failure to preserve data from cloud provider Salesforce.com?:

A. Zeller v. So. Central Emergency Med. Servs. Inc.

B. In re Text Messaging Antitrust Litig.

C. Brown v. Tellermate Holdings

D. Brookshire Bros., Ltd. v. Aldridge

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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.

August Case Law Pop Quiz! – eDiscovery Case Law

We haven’t conducted a pop quiz in a while, so the “dog days” of summer seems like a good time for it.  This one is customized to the eDiscovery case law that we’ve covered the past three months.  If you’re reading the blog each day, these questions should be easy!  If not, we’ve provided a link to the post with the answer.  We’re that nice.  Test your knowledge!  Tomorrow, we’ll post the answers for those who don’t know and didn’t look them up.

1.  In which case was the plaintiff was ordered to produce photos of herself that were posted to Facebook?:

A. Castillon v. Corrections Corporation of America, Inc.

B. In Cactus Drilling Co. v. Nat’l Union Fire Ins. Co.

C. Forman v. Henkin

D. None of the above

2.  In which case were sanctions imposed, even though no spoliation of evidence ultimately occurred?:

A. EEOC v. SVT, LLC

B. Procaps S.A. v. Patheon Inc.

C. Knickerbocker v Corinthian Colleges

D. None of the above

3.  In which case was over $50,000 of eDiscovery costs awarded to the prevailing party disallowed?:

A. Kwan Software Engineering v. Foray Technologies

B. Miller v. York Risk Servs. Grp.

C. United States v. Shabudin

D. In Progressive Cas. Ins. Co. v. Delaney

4.  In what case was one party ordered to continue to share a review database with the opposing party?:

A. Kwan Software Engineering v. Foray Technologies

B. Miller v. York Risk Servs. Grp.

C. United States v. Shabudin

D. In Progressive Cas. Ins. Co. v. Delaney

5.  In which case did the court disallow the plaintiff’s plan for predictive coding?:

A. Kwan Software Engineering v. Foray Technologies

B. Miller v. York Risk Servs. Grp.

C. United States v. Shabudin

D. In Progressive Cas. Ins. Co. v. Delaney

6.  In what case was the defendant’s request for a deposition to review whether the plaintiff had used “appropriate search tools for ESI discovery” denied?:

A. Koninklijke Philips N.V. v. Hunt Control Sys., Inc.

B. Elkharwily v. Mayo Holding Co.

C. Stallings v. City of Johnston City

D. Raines v. College Now Greater Cleveland, Inc.

7.  In which case did the court suggest the parties consider the use of predictive coding?:

A. Chapman v. Hiland Operating, LLC

B. FDIC v. Bowden

C. Downs v. Virginia Health Systems

D. Zeller v. So. Central Emergency Med. Servs. Inc.

8.  How much was Samsung and Quinn Emanuel ordered to pay for their “Patentgate” disclosure of confidential Apple and Nokia agreements?:

A. $1 million

B. $2 million

C. $3 million

D. $10 million

9.  In which case did the court not only reject the plaintiff’s request for sanctions, but issued a summary judgment in favor of the defendant?:

A. Zeller v. So. Central Emergency Med. Servs. Inc.

B. In re Text Messaging Antitrust Litig.

C. Brown v. Tellermate Holdings

D. Brookshire Bros., Ltd. v. Aldridge

10. In which case did the court issue a severe sanction against the defendant for failure to preserve data from cloud provider Salesforce.com?:

A. Zeller v. So. Central Emergency Med. Servs. Inc.

B. In re Text Messaging Antitrust Litig.

C. Brown v. Tellermate Holdings

D. Brookshire Bros., Ltd. v. Aldridge

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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.

Are Law Firms at an eDiscovery “Watershed”? – eDiscovery Trends
 

Perhaps so, based on the results of one survey.

As reported by Sean Doherty of Law Technology News (Survey: Law Firms Are at E-Discovery 'Watershed'), according to a survey released on July 22, sponsored by RVM Enterprises Inc. and conducted by Ari Kaplan Advisors, law firms are at a “watershed” moment when it comes to creating efficient eDiscovery models for supporting their corporate clients.

As the Introduction to the report stated, “RVM retained Ari Kaplan Advisors to engage 30 senior attorneys at many of the nation’s largest law firms in detailed conversations during the first quarter of 2014 about past, present, and future trends in the legal community.  The findings, based on these interviews, characterize the catalysts transforming the profession in an era of expansive eDiscovery and highlight how organizations are universally pivoting to remain current in their approach to client service.”

Regarding the survey participants, “73% are partners and 27% are senior eDiscovery lawyers. All are members of an eDiscovery group within their firms to varying degrees. 100% recommend eDiscovery tools and vendors to corporate counsel, and also develop and implement eDiscovery processes.”  So, these are people who are certainly eDiscovery advocates.  Here are a few highlights of the findings from the report:

  • 93% of respondents said that client expectations have changed with respect to practice support technology and related costs;
  • 73% of respondents said that their firm has an eDiscovery counsel position (though not all specifically designate their lawyers with that title);
  • 79% of respondents reported that the role of eDiscovery counsel is both an internal resource and an external marketing tool;
  • 57% of respondents stated that they have had a client request that they work with eDiscovery counsel;
  • 93% of respondents reported that a combination of individuals is engaged in the practice support technology and vendor selection process;
  • 97% of respondents outsource some portion of their eDiscovery, with the most common aspect being processing, and
  • 83% of respondents have received a client request to write off eDiscovery costs.

There is quite a bit more to the report, including other stats and specific observations from individual participants, including the challenge to bill for eDiscovery services – “Clients think that eDiscovery services should be part of the operating costs of the firm” was one observation.

Here is a link to a press release from RVM Enterprises announcing the report – the 14 page report, prepared by Ari Kaplan Advisors, is available in PDF format via a link on the press release.  Best of all, the report is FREE.

So, what do you think?  How do those stats compare to experiences in your firm?  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.

eDiscovery Throwback Thursdays – Collecting Documents
 

In 1978, I took my first job in litigation, with the law department of a Fortune 100 corporation headquartered in New York City. I was one of a team assembled to collect responsive documents to be produced in a major antitrust litigation. The documents were located in the corporation’s office and warehouse facilities around the country. While the process of collecting documents varied from case to case, this project was representative of the general approach to collecting documents in large-scale litigation. Let me describe how it worked.

Before travelling to a facility, reviews of custodian files were scheduled, central files to be reviewed were identified, and indices of boxes of archived materials in warehouses were reviewed.  We coordinated with an on-site administrator to ensure that the supplies we needed would be ready (boxes, manila file folders, pads, stickers, markers, etc.), and we made arrangements for a temporary photocopy operation to be set-up on site. 

Upon arrival at an office facility, we each went to our first assigned custodian office — and with empty archive boxes on hand, we’d start the review. We’d put numbered stickers on every file cabinet drawer and desk drawer to be reviewed. We’d label the outside of an archive box with the custodian’s name. Upon finding a responsive document, it was pulled out, an “out card” was put in its place in the original file (we wrote the number of pages of the document that was removed on the out card).  We created a file folder labeled with the number of the file cabinet/desk drawer, followed by the same title on the file from which the document was removed, and we placed the document in the folder, which went into the archive box.  An entire office was reviewed like this, and when we finished an office, we labeled each box with “1 of N”, “2 of N” and so on.

The next step was photocopying, which was quite an involved operation.  Most of this was ‘glass-work’ – that is, stacks of paper were not fed into the machine for bulk photocopying; rather, documents were photocopied one-by-one, by hand. This was necessary because staples, paper clips, and binder clips had to be removed, post-it notes had to be photocopied separately, spiral bound materials needed to be un-bound, and so on. A photocopy operator removed a document form an archive box, did the required preparation, made a photocopy, reassembled the original and put it back in the archive box, assembled the photocopy to match the original and placed it in a second archive box labeled the same as the first, and within the box, in a folder labeled the same as the original.  You get the picture. 

After photocopying, a second operator did a quality control review to ensure that everything copied properly and nothing was missed.  Originals were returned to the document reviewer to re-file, and the copies – which were now the ‘original working copy’ for purposes of litigation – were sent on to the next step… document numbering.  A sequential number was applied to every page using either a Bates stamp machine or a number label.  After numbering, documents were boxed for shipping.

After reviewing the office files, we usually moved on to a warehouse facility at which we used the same approach.  For the most part, the warehouse reviews were unpleasant.  Very often there was inadequate heat or air conditioning, poor ventilation, uncomfortable furniture, and lots of dust.  On the bright side, we got to wear jeans and t-shirts to work, which was unheard of in the days before ‘business casual’ and ‘casual Friday’ were the norm.

This operation was a pretty routine document collection project.  There was, however, one thing about this case that wasn’t routine at all.  After numbering, these documents were shipped to a litigation support service provider for document coding.  This was one of those rare, bet-your-company cases for which a database was built. In the next few blog posts in this series, I’ll describe the litigation support industry and a typical litigation support database.

Please let us know if there are eDiscovery topics you’d like to see us cover in eDiscoveryDaily.

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.

Texas Supreme Court Reverses Spoliation Ruling, Remands Case for New Trial – eDiscovery Case Law
 

In Brookshire Bros., Ltd. v. Aldridge (Tex. July 3, 2013), the Supreme Court of Texas determined “that imposition of the severe sanction of a spoliation instruction was an abuse of discretion” in the trial court, reversed the court of appeals' judgment and remanded the case for a new trial.

In this case, the plaintiff Aldridge (who is the respondent in the appeal) slipped and fell at the defendant’s (who is the petitioner in the appeal) store and sued for damages after the defendant stopped paying for medical expenses.  The plaintiff’s fall was captured on surveillance video and the defendant preserved the video footage from the time plaintiff entered the store until shortly after he fell, but did not preserve the remainder of the video, which was “presumably recorded over” by early the next month.

To recover in a slip-and-fall case, a plaintiff must prove, inter alia, that the defendant had actual or constructive knowledge of a dangerous condition on the premises such as a slippery substance on the floor and the plaintiff argued in the trial court that the defendant’s failure to preserve additional video footage amounted to spoliation of evidence that would have been helpful to the key issue of whether the spill was on the floor long enough to give the defendant a reasonable opportunity to discover it.

As a result, the plaintiff moved for a spoliation jury instruction and the trial court: 1) allowed the jury to hear evidence bearing on whether the defendant spoliated the video, 2) submitted a spoliation instruction to the jury, and 3) permitted the jury to decide whether spoliation occurred during its deliberations on the merits of the lawsuit.  The jury ruled in favor of the plaintiff and awarded him over $1 million in damages. The court of appeals affirmed the trial court's judgment on the verdict, holding that the trial court did not abuse its discretion in admitting evidence of spoliation or charging the jury with the spoliation instruction.

After analysis of the law associated with spoliation, the Supreme Court stated that “the harsh remedy of a spoliation instruction is warranted only when the trial court finds that the spoliating party acted with the specific intent of concealing discoverable evidence” and that a “failure to preserve evidence with a negligent mental state may only underlie a spoliation instruction in the rare situation in which a nonspoliating party has been irreparably deprived of any meaningful ability to present a claim or defense”.  As a result, the Court held “that a trial court's finding of intentional spoliation pursuant to the analysis set forth above is a necessary predicate to the proper submission of a spoliation instruction to the jury.”

While issuing the caveat that “[o]n rare occasions, a situation may arise in which a party's negligent breach of its duty to reasonably preserve evidence irreparably prevents the nonspoliating party from having any meaningful opportunity to present a claim or defense”, the court determined that there was no evidence of the requisite intent to conceal or destroy relevant evidence or that plaintiff was “irreparably deprived of any meaningful ability to present his claim” and held that the trial court therefore abused its discretion in submitting a spoliation instruction, reversed the court of appeals' judgment and remanded the case for a new trial.

So, what do you think?  Was the reversal of the ruling the right decision or should the sanction for spoliation of evidence have stood?  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.

Failure to Preserve Cloud-Based Data Results in Severe Sanction for Defendant – eDiscovery Case Law
 

In Brown v. Tellermate Holdings, 2:11-cv-1122 (S.D. Ohio Jul 1, 2014), Magistrate Judge Terence Kemp granted plaintiffs’ motion for judgment and motion to strike, ruling that the defendant could not “present or rely upon evidence that it terminated the Browns' employment for performance-related reasons” and enabling the plaintiffs to use documents produced by the defendant “designated as attorneys'-eyes-only” to be used by the plaintiffs “without restriction”, due to the defendant’s failure to preserve or produce data from their Salesforce.com database.

You have to love an opinion that begins like this:

“There may have been a time in the courts of this country when building stone walls in response to discovery requests, hiding both the information sought and even the facts about its existence, was the norm (although never the proper course of action). Those days have passed. Discovery is, under the Federal Rules of Civil Procedure, intended to be a transparent process.”

That’s how this lengthy opinion began in this case where the plaintiffs, former sales agents, sued the defendant for age discrimination after they were terminated.  The defendant responded by arguing that the terminations were performance related.  To address that argument, the plaintiffs sought records from the defendant’s through salesforce.com to demonstrate that they consistently met or exceeded their quotas. In response, the defendant “with the participation of its counsel, either intentionally or inadvertently failed to fulfill certain of its discovery obligations, leading to a cascade of unproductive discovery conferences, improperly-opposed discovery motions, and significant delay and obstruction of the discovery process.”  As Judge Kemp described, the defendant’s counsel:

  • “failed to uncover even the most basic information about an electronically-stored database of information (the ‘salesforce.com’ database);
  • as a direct result of that failure, took no steps to preserve the integrity of the information in that database;
  • failed to learn of the existence of certain documents about a prior age discrimination charge (the "Frank Mecka matter") until almost a year after they were requested;
  • and, as a result of these failures, made statements to opposing counsel and in oral and written submissions to the Court which were false and misleading, and which had the effect of hampering the Browns' ability to pursue discovery in a timely and cost-efficient manner (as well as the Court's ability to resolve this case in the same way).”

One of the defendant’s attorneys went so far as to provide these reasons to the plaintiffs as to why they could not produce the information from Salesforce.com:

  • "Tellermate does not maintain salesforce.com information in hard copy format."
  • "Tellermate cannot print out accurate historical records from salesforce.com. . . ."
  • "[D]iscovery of salesforce.com information should be directed to salesforce.com, not Tellermate."

The defendant later claimed that it was “contractually prohibited from providing salesforce.com information” and that it “cannot access historical salesforce.com data” – both of which were untrue.

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” and issued the following severe sanctions:

“Tellermate shall not, in connection with either the pending summary judgment motion or at trial, be entitled to present or rely upon evidence that it terminated the Browns' employment for performance-related reasons. The documents produced by Tellermate in April, 2013 and designated as attorneys'-eyes-only may be used by the Browns without restriction, subject to Tellermate's ability to redesignate particular documents as confidential under the existing protective order, provided it does so within fourteen days and has a good faith basis for so designating each particular document. Tellermate shall produce the remaining Frank Mecka documents to the Browns within fourteen days. Finally, Tellermate and its counsel shall pay, jointly, the Browns' reasonable attorneys' fees and costs incurred in the filing and prosecution of those two motions as well as in the filing of any motions to compel discovery relating to the salesforce.com and Frank Mecka documents.”

So, what do you think?  Do the sanctions fit the activities by the defendant?  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.

Here is a “Mashup” of eDiscovery Market Estimates – eDiscovery Trends

Last Friday, we profiled one eDiscovery market estimate that predicts that the eDiscovery market will reach $15.65 billion by 2020.  Now, here’s a “mashup” of other estimates, courtesy of Rob Robinson.

Rob Robinson’s Complex Discovery site is an excellent resource for discovery and general legal technology articles which we’ve profiled several times before, including last year when we profiled his compilation of various eDiscovery market estimates for 2012 to 2017. Now, he’s updated the estimates to provide An eDiscovery Market Size Mashup for 2013 to 2018.

Like last year, the compilation is “[t]aken from a combination of public market sizing estimations as shared in leading electronic discovery publications, posts and discussions over time, the following eDiscovery Market Size Mashup shares general market sizing estimates for both the software and service areas of the electronic discovery market for the years between 2013 and 2018.”

Here are some highlights (based on the estimated from the compiled sources):

  • The eDiscovery Software and Services market is expected to grow an estimated 15.51% Compound Annual Growth Rate (CAGR) per year from 2013 to 2018 from $5.36 billion to $11.02 billion per year.  Services comprise approximately 72% of the market and software comprises approximately 28%.
  • The eDiscovery Software market is expected to grow an estimated 17.15% annual growth per year from 2013 to 2018 from $1.5 billion to $3.31 billion per year.  Software currently comprises 28% of the market, which will rise to 30% by 2018.  Also by 2018, 80% of the eDiscovery software market will be “off-premise” – which includes cloud-based and other Software-as-a-Service (SaaS)/Platform-as-a-Service (PaaS)/Infrastructure-as-a-Service (IaaS) solutions.
  • The eDiscovery Services market is expected to grow an estimated 14.87% annual growth per year from 2013 to 2018 from $3.86 billion to $7.72 billion per year.  Like last year, the breakdown of the services market is as follows: 73% review, 19% processing and 8% collection.

Here are the sources that Rob states were used in compiling the “mashup”:

  • Gartner, Inc. “Magic Quadrant for E-Discovery Software.” Jie Zhang, Debra Logan, Garth Landers. June 19, 2014.
  • IDC “Wordwide eDiscovery Software 2014-2018 Forecast.” Sean Pike. May 2014.
  • The Radicati Group. “eDiscovery Market, 2013-2017.” Sara Radicati. August 2013.
  • Gartner, Inc. “Magic Quadrant for E-Discovery Software.” Debra Logan, Alan Dayley, Sheila Childs. June 10, 2013.
  • The Radicati Group. “eDiscovery Market, 2012-2016.” Sara Radicati, Todd Yamasaki.  October 2012.
  • Transparency Market Research. “World e-Discovery Software & Service Market Study.” August 2012 (their new report just came out before Rob published his latest “mashup”).
  • Rand Institute For Civil Justice. “Where the Money Goes:  Understanding Litigant Expenditures for Producing Electronic Discovery.” Nicolas Pace and Laura Zakaras. April 2012.
  • IDC “MarketScape: Worldwide Standalone Early Case Assessment Applications Vendor Analysis.” Vivian Tero. September 19, 2011.
  • Industry Observer Estimations (Multiple Observers)

As always, you’ll want to check out the story (including the cool, informative graphs), which you can do by clicking here.

So, what do you think?  Do you agree with these industry growth projections?  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.

eDiscovery Market Predicted to Reach $15.65 Billion by 2020 – eDiscovery Trends

Is the eDiscovery industry still growing?  According to one research firm, the answer is a resounding yes.

According to a new market report published by Transparency Market Research (eDiscovery Market – Global Industry Analysis, Size, Share, Growth, Trends and Forecast, 2014 – 2020), the global eDiscovery market is forecast to reach $15.65 billion by 2020. The growth of eDiscovery market is driven by increasing volume of ESI (electronically stored information) every year in organizations and need to manage this huge data volume for civil litigation purpose. Emergence of social media such as Instagram, Linkedin and Facebook across the organizations is resulting in increasing demand for eDiscovery solutions that can be used for social media electronic discovery.

As noted in their press release, the Global eDiscovery market was valued at $5.56 billion in 2013 and is expected to grow at a Compound Annual Growth Rate (CAGR) of 15.5% from 2014 to 2020. That’s a 281 percent total rise from 2013 to 2020!  The press release states that “Rising use of eDiscovery solutions in government and regulatory agencies is driving the growth of eDiscovery market. In government agencies, investigators and compliance officers use eDiscovery solutions to manage the increasing regulatory audits and investigations. Furthermore, legal and IT departments in large organizations have increased the usage of eDiscovery solutions. Organizations are deploying eDiscovery solutions for efficient information governance and internal investigations. In addition, emergence of social media in organizations is fueling the growth of eDiscovery market. However, high cost associated with services such as collection, processing and review is hindering the growth of eDiscovery market.”

Which end-use sector is the largest currently?  That would be government and regulatory agencies which accounted for 51.1% of the eDiscovery market revenue share in 2013. According to the report, this segment is “expected to dominate the eDiscovery market over the forecast period due to increasing civil litigations and regulatory audits.  In addition, governments of various countries such as Japan and South Africa are taking initiatives to implement eDiscovery process in their agencies and organizations. For example, in 2013, South African government introduced POPI (The Protection of Personal Information) legislation to promote deployment of eDiscovery solutions across all size of organizations to address issues related to investigation of electronic information and risks associated with it.”

“Geographically, North America is expected to remain the largest segment for eDiscovery market due to the growth in demand for eDiscovery software and services in offices to meet regulatory compliances. North America is anticipated to dominate this market throughout the forecast period due to the increasing use of eDiscovery solutions, especially across enterprises and law firms for early case assessment.”

Their report from two years ago (spanning 2010 to 2017) indicated that the global eDiscovery market was worth $3.6 billion in 2010 and was expected to reach $9.9 billion by 2017, growing at a CAGR of 15.4% during that time (virtually identical to the 15.5% CAGR they forecast in their latest report.

Their report also discusses topics such as pricing trends, competitor analysis, growth drivers, opportunities and inhibitors and provides company profiles of several big players in the industry.  The 86 page report is available in a single user license for $4,795 up to a corporate license for $10,795.

So, what do you think?  Do you agree with their forecast?  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.

eDiscovery Throwback Thursdays – Circa 1978, We Lived in a World of Paper
 

Back before desktops, laptops and tablets, the business world meant paper.  Lots of paper. And that meant that litigation preparation activities revolved around paper.  Paper documents. Paper logs for tracking activity. Paper coding forms for recording document information. Paper reports.  Our supplies for litigation support activities were pens, pencils, pads of paper, staplers, staple removers, rubber fingers, white-out, post-it notes, boxes, manila file folders, and yes, even Band-Aids (paper cuts were a common work-place ‘injury’).

Although it was a very different world, some things were the same.  In fact, if you look at the EDRM graphic, every phase on the chart also applied to paper.  It was the way things worked back then, if you took the word “Electronic” out of the title and simply called it “Discovery Reference Model”.  Here’s a summary of how the phases of the EDRM applied, prior to the early 1980s:

  • Information Governance:  Businesses managed information and paper.  Employees maintained paper files in filing cabinets in their offices.  Important documents and those of common interest were stored in departmental central files (typically a common area with rows of filing cabinets or shelves of files, maintained by a secretary).  Old documents were boxed up and sent to warehouse facilities for long-term storage.  Indices of the files in those boxes were maintained on paper logs.  Many businesses had document retention policies in place, which included schedules for when documents were to be shredded.
  • Identification:  Responsive documents needed to be located, so that meant identifying custodians, central filing systems and warehouse facilities that were likely to house responsive materials.
  • Preservation:  Potentially responsive paper documents needed to be preserved…  which meant ‘stop shredding’.
  • Collection:  Paper documents were collected.
  • Processing:  Usually, ‘processing’ meant photocopying potentially responsive documents.
  • Review:  Documents were reviewed for responsiveness and privilege.
  • Analysis:  Document content was analyzed, documents were categorized around witnesses and issues, and hot documents were identified.  Most attorneys created a physical binder for each witness, fact and issue in a case, and a single document might be photocopied a number of times, once for each binder into which it was filed.  In the late 1970’s, for some large, ‘bet your company’ cases, documents were coded and document information was loaded into a database. Building a database, however, was by no means commonplace in the late 1970’s.
  • Production:  Documents that were identified as responsive were turned over – in paper form – during discovery.
  • Presentation:  Paper documents were used as exhibits in hearings, depositions and at trial.

Next week, we’ll take a closer look at a typical document collection project circa 1978.

Please let us know if there are eDiscovery topics you’d like to see us cover in eDiscoveryDaily.

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.

Transparency Reports for Other Companies – Social Tech eDiscovery

Over the past couple of weeks, we’ve taken a fresh look at Twitter’s Law Enforcement Policies and their latest Transparency Report to show government requests for data, looked at (for the first time) LinkedIn’s Privacy and Law Enforcement Data Request Guidelines and Transparency Report and, yesterday, looked at Facebook’s policies and Government Request Reports.  Today, we will look at Transparency Reports for other companies.

Many other high profile companies also provide reports showing government requests for data, not just social media companies.  Some, like Google, provide a highly interactive report to navigate to various types of requests, ranging from government requests to remove data to requests for information about their users.  Others, like Apple, provide a simple one page letter with broad ranges of information requests and accounts affected (Apple’s latest letter is over a year old).  Some are current (through the end of 2013 at least), others have not been updated to reflect data since the end of 2012.  Evidently, some companies take transparency more seriously than others!  With that in mind, here are links to reports for various high profile technology companies where you might have data:

I tried to pull up the Transparency Report for Pinterest, but the link immediately redirects to their help page, so it’s only transparent if you can read really fast!

Obviously, in these modern times, our data (both personal and professional) is stored by a number of companies and law enforcement entities will request data from those companies for investigative purposes.  It’s a good idea to know how those companies respond to those requests and what rights you have as a customer.

So, what do you think?  Have you needed to request user information from any high profile technology companies for litigation purposes?  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.