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eDiscoveryDaily

Samsung and Quinn Emanuel Ordered to Pay Over $2 Million for “Patentgate” Disclosure – eDiscovery Case Law

Remember the “patentgate” disclosure last year (by Samsung and their outside counsel firm of Quinn Emanuel Urquhart & Sullivan LLP) of confidential agreements that Apple had with Nokia?  Did you think they were going to avoid having to pay for that disclosure?  The answer is no.

In a June 20 ruling by California Magistrate Judge Paul S. Grewal, he began by noting “With the present quiet on the docket, it is easy to forget the long tumult of this case that once reigned. The ceremonial courtroom has cleared. The fire drills of motions on shortened time have ceased. All that remains for now, at least for the undersigned, is the relatively mundane issue of what makes for reasonable fees.

The fees at issue arise from this court’s order awarding sanctions to Apple and Nokia. The sanctions followed the court’s finding that Samsung and Quinn Emanuel were responsible for the unauthorized distribution of Apple and Nokia confidential information. Samsung and QE object to certain of the fees Apple and Nokia now claim, which means the court must wade into the billing entries and make various calls. So, here goes.”

The summary of events related to the inadvertent disclosure by Quinn Emanuel are described here and the details of the sanction applied to Quinn Emanuel are described here.

The question in this order turned to the fees and costs requested by Apple and Nokia.  Section C of the order was titled “With Limited Exceptions, Apple And Nokia’s Requests Have Been Sufficiently Supported To Sustain The Requested Award” and Judge Grewal stated that “in the over four hundred pages of correspondence and billing records submitted for review, the court has identified only 19 records that it finds troubling” (those were entries where partners and senior associates block billed ten or more hours on “drafting,” “preparing” “revising” or paying “attention to” various briefs and were listed in detail, along with the reduced amount after a 20% reduction penalty).

As for the rest of the entries, Judge Grewal commented that “[t]he court notes and appreciates that both Apple and Nokia have applied a series of discounts to their requests already” and ordered that, aside from the noted exceptions “the court finds that the remaining costs and fees requested by Apple and Nokia are reasonable and shall be awarded.  No later than 30 days from this order, Samsung and QE are to pay Nokia a total of $1,145,027.95 and Apple a total of $893,825.77 in fees and costs.” (emphasis added)

So, what do you think? Were those amounts awarded excessive?  Or did Samsung and Quinn Emanual get off lightly?  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.

Court Rules in Dispute Between Parties Regarding ESI Protocol, Suggests Predictive Coding – eDiscovery Case Law

In a dispute over ESI protocols in FDIC v. Bowden, CV413-245 (S.D. Ga. June 6, 2014), Georgia Magistrate Judge G. R. Smith approved the ESI protocol from the FDIC and suggested the parties consider the use of predictive coding.

After FDIC-insured Darby Bank & Trust Co. failed in November 2010, the FDIC took over as receiver (as FDIC-R) and brought a bank mismanagement case against sixteen of Darby’s former directors and officers.  Thus far, the parties had been unable to agree on a Joint Protocol for Electronically Stored Information (ESI) and the dispute ultimately reached the court.  The FDIC-R had already spent $614,000 to digitally scan about “2.01 terabytes of data or 153.6 million pages” of data at the bank, but the defendants insisted that the FDIC-R shoulder the burden and expense of reviewing the documents and determining their responsiveness to the claims “”[e]ven though the Bank’s documents were created under Defendants’ custody and control”.

The defendants also argued for a protocol which involved the FDIC-R to “repeatedly search, review, and re-review myriad ‘second-run’ (Phase II) documents, then turn over to them the documents relevant to both claims and defenses that arise in this litigation. The FDIC-R argued for a protocol in which it would produce “categories of documents most likely to contain relevant information” which the defendants could then search, claiming that protocol would be the more “correct allocation of discovery burdens between the parties.” The defendants contended that “search terms alone won’t suffice” and the FDIC-R’s proposed protocol does not relieve the receiver of its Rule 34 burden to “locate and produce responsive documents.”

After reviewing the two proposed protocols, Judge Smith ruled that “given the common ground between the dueling protocols here, the FDIC-R’s ESI protocol will be implemented, as modified by the FDIC-R’s ‘briefing concessions’…as well as by the additional guidance set forth in this Order.”  Those briefing concessions included “offering to open ‘all of the Bank’s former documents . . . [so defendants can retrieve them] to the same extent that the FDIC-R can’” and “offering, in ‘Phase II’ of the disclosure process, to ‘meet and confer with Defendants to reach agreement upon a set of reasonable search terms to run across the database of sources of the ESI to identify documents for production’”.  In approving the FDIC-R’s protocol, Judge Smith stated that “the FDIC-R may meaningfully deploy suitable search terms to satisfy its initial disclosure requirements and respond to forthcoming Rule 34 document requests”.

Also, referencing the DaSilva Moore decision of 2012, Judge Smith stated that “the parties shall consider the use of predictive coding” if ESI protocol disagreements persisted noting that it “has emerged as a far more accurate means of producing responsive ESI in discovery”.

So, what do you think? Should organizations bear the bulk of the discovery burden in cases against individual defendants? Or should the burden be balanced between both parties?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will resume posts on Monday, July 7.  Happy Birthday America!

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.

EDRM Introduces Search Intent Framework – eDiscovery Trends
 

It seems that just about every month EDRM publishes a new standard or guideline for eDiscovery best practices.  On Monday, they announced the release of a new Search Intent Framework.

As their press release states: “The new framework was developed to define and document various types of search intent that are part of the EDRM.  Within the EDRM, ‘search” is used broadly in many contexts: to assess or scope a matter, acquire specific documents or discrete information or classify preselected documents; these have minimal legal impact. For other EDRM searches, the legal impact is high, such as in asserting comprehensiveness and accuracy. Enterprise search, early data assessment, e-discovery processing search functions, review system search functions and even concept analysis or document clustering tools are all described as ‘search’ in the context of the EDRM, with little recognition that poor accuracy in one context is more consequential than in others.”

So, why the need for a search intent framework?  “The intent of any search is what determines the appropriate technology, process or workflow that should be implemented and the level of scrutiny to be applied in determining “reasonable” success. The EDRM Search Intent Framework was developed to define and document the different classes and subclasses of search intent that comprise the EDRM.”

With regard to classes of search intent, the EDRM Search Intent Framework (available here) describes three classes:

  • Exploratory Class: Used to confirm whether or not a specific document, reference, or discrete piece of information exists, as well as to gain general knowledge about a document set in order to understand how to handle the data set.
  • Classification Class: Used to categorize individual documents or a set of documents as to their responsiveness, non-responsiveness, whether or not they flag a policy, and so forth.
  • Quality Control: Used to identify inconsistencies in a document set. Quality control testing is typically done during review and production to test that documents are properly coded and are appropriate to either be produced or not produced.

Each Class includes the Sub-Class, Intent, Implementation and Measure of Success associated with each Sub-Class within the Class.  The Framework provides a color coded legend to identify each phase of the EDRM, from Information Governance to Presentation and uses those color codes to identify which phases apply to each Sub-Class (for example, in the Exploratory Class, Identification, Preservation and Collection apply to the Assessment Sub-Class).  Each Sub-Class is flowcharted from the Sub-Class down to the Measure of Success resulting from the Sub-Class of search intent.  Detailed descriptions are also provided for each Sub-Class.

As the Framework states, “It is the intent of the search that should determine the appropriate technology, process, or workflow, that should be implemented, and the level of scrutiny to be applied in determining “reasonable” success.”  Apparently, all searches aren’t created the same!

From the link above, the Framework can be downloaded as a single page PDF – unfortunately, the page dimensions are 23.95 x 13.30 inches (a three page Framework might be easier to read, just sayin’).  But, the Framework does provide a clear depiction of the intent of each type of search from intent to implementation and measure of success.

So, what do you think? Could this new Framework help your search strategy?  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.

Farewell to IT-Lex – eDiscovery Trends

We enjoy the opportunity to be a daily resource for eDiscovery news and analysis.  There are several good resources for information about eDiscovery and legal technology, though very few of them provide new content daily.  One that has been essentially doing so for the past two years is IT-Lex.  Unfortunately, as of today IT-Lex has announced that they have discontinued operations.

A few days ago, IT-Lex announced the news on their site here:

“For the past two years, IT-Lex has been honored to advance the dialogue on all matters concerning technology law.  Since our upstart beginning as a simple blog that could easily be confused for a college student’s tumblr feed, IT-Lex has published well over 1,000 blog posts, hosted the Innovate Conference in October 2013, awarded thousands of dollars in scholarship money to law students, and, most recently, published the IT-Lex Journal.

Behind these successes, there have been sleepless nights, long weekends, and boundless effort from everyone involved in our not-for-profit endeavor.  As they say, “All good things must come to an end.”  After a great deal of thought and consideration, those of us at IT-Lex will be moving on to other endeavors.  IT-Lex will discontinue operations on July 1, 2014, but we will leave the articles on our site up as an archive for as long as possible.

It is our sincere hope that in some way, big or small, IT-Lex was able to help you, your practice, and the legal profession through entertaining educational materials, networking opportunities, or even simply giving you a good laugh in the middle of your workday through one of our more light-hearted posts.

On behalf of Lexington (our robot mascot), and all of us at IT-Lex, it has been a heck of a ride . . .  thank you for coming along with us.”

Samir Mathur and Adam Losey were kind enough to allow me to write a guest post once (Lessons Learned from eDiscovery Thought Leaders, from our thought leader interview series of 2013) and Adam was kind enough to participate in our thought leader interview series the past two years (here is his two part interview from 2013 and also his 2014 interview).  Their efforts have resulted in high quality legal education content for lawyers and law students alike, as well as assistance for law students and all within a 501(c)(3) non-profit organization.  Nice!

Alas, as they said “all good things must come to an end”.  I’ll miss their articles, though as noted above, IT-Lex will leave their past articles up on their site as long as possible.  I encourage you to check them out – they’re enjoyable to read and very informative.

So, what do you think? From what resources do you get useful eDiscovery information?  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 Ordered to Re-Open Social Media Account for Discovery – eDiscovery Case Law
 

In Chapman v. Hiland Operating, LLC, 2014 U.S. Dist. Case No. 1:13-cv-052 (D.N.D. May 29, 2014), while noting that he was “skeptical” that reactivating the plaintiff’s Facebook account would produce any relevant, noncumulative information, North Dakota Magistrate Judge Charles S. Miller ordered the plaintiff to “make a reasonable, good faith attempt” to reactivate her Facebook account.

The defendant’s requests for production included a request for communications in the form of, “emails, text messages, instant messages, journal updates, Facebook postings, notes, cards, and/or memorandums”.  The plaintiff objected to that request on several grounds, including that it violated the attorney client and work product privileges, was “unintelligible, improperly vague and ambiguous” and overbroad.

However, in the plaintiff’s deposition, she stated that her attorney advised her to deactivate her Facebook account, which occurred prior to the production request by the defendants. She also stated that stated that she attempted to reactivate her account to respond to discovery requests but was unable to remember her password, but had not attempted to change her password or contacted Facebook regarding reactivating her account. She claimed that she rarely used the account, and when she did it was primarily to communicate with her nieces and nephews. 

Judge Miller noted that although the court was “skeptical” that the plaintiff’s Facebook account “will contain any relevant, noncumulative information, especially given the amount of discovery already completed in this case”, he granted in part the defendant’s motion to compel and ordered the plaintiff and attorney to “make a reasonable, good faith attempt” to reactivate the Facebook account.   He instructed that the plaintiffs do not have to permit defense counsel to be present during the attempt to reactivate the account, and if the account is reactivated, plaintiffs do not have to provide defense counsel the account login and password or full access to the account.

If the Facebook account is reactivated, Judge Miller ordered the plaintiffs to produce in the form of a screen shot other similar format all information from the account referencing a co-plaintiff’s health and his relationship with the other plaintiff since October 19, 2008, and ordered the plaintiff to complete the items by June 27th (last Friday).

So, what do you think? Was the plaintiff’s attorney out of line in ordering the plaintiff to deactivate her Facebook account?  Are screen shots the best way to produce social media 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.

Want to Craft Better Searches? Use a Dictionary – eDiscovery Best Practices

On the very first day we launched this blog nearly four years ago, one of our first blog posts was called “Don’t Get ‘Wild’ with Wildcards” where we showed how a poorly constructed wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining” actually retrieved over 300,000 files with hits because there are 269 words in the English language that begin with the letters “min” (such as words like “mink”, “mind”, “mint” and “minion”).  So, how do you find the actual variations of the word you want?  Use a dictionary.

In that blog post back on September 20, 2010, we discussed that one way to capture the variations is with stem searching.  eDiscovery applications that support stem searching give you an ability to enter the root word (e.g., mine) and it will locate that word and its variations.  Stem searching provides the ability to find all variations of a word without having to use wildcards.

But, what if your application doesn’t support stem searching?  As we noted back then, Morewords.com shows list of words that begin with your search string.  So, to get all 269 words beginning with “min”, go here – simply substitute any characters for “min” to see the words that start with those characters.  You can choose the variations you want and incorporate them into the search instead of the wildcard – i.e., use “(mine or “mines or mining)” instead of “min*” to retrieve a more relevant result set.

However, do you really want to search through 269 words to get the ones you want?  Or, what if you put your wildcard in the wrong place?  You can miss relevant variations as easily as you can over-include non-relevant ones.  How do you get to the right variations of the word you want?  Use a dictionary.

Dictionary.com, that is.  Type in the word that you want at the top of the form and find all of the uses of it (e.g., the yellow sweater is mine) and also variations of it (mined, mining).  You can even find synonyms of the word (e.g., reserve, excavate) on the left hand side of the form (via Thesaurus.com) that might lead to additional terms you may want to include in your search.

A recent client proposed a wildcard of depreciate* to reflect assets that depreciate.  That wildcard would have picked up variations such as depreciates and depreciated, but would have missed other obvious variations like depreciating and, of course, depreciation.  So, believe it or not, a poorly placed wildcard may not be “wild” enough.  How do you make sure you cover all of the variations you need?  Use a dictionary.

So, what do you think? Do you use wildcards in your eDiscovery searches? If so, how do you check them to ensure that they are neither over-inclusive nor under-inclusive?  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.

Wednesday LTWC 2014 Sessions – eDiscovery Trends

As noted yesterday, LegalTech West Coast 2014 (LTWC) is happening this week and eDiscoveryDaily is reporting about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the Los Angeles area with a number of sessions (both paid and free) available and at least 50 exhibitors providing information on their products and services.

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 25 hits.  Sessions in the main conference tracks include:

10:30 AM – 11:45 AM:

Information Governance: More Than Defensible Disposition

Litigation readiness. E-discovery. Defensible disposition. Attorneys, paralegals and technology experts all benefit from their organization’s having efficient and effective processes for responding to litigation. A well-conceived information governance program that takes into account the organization’s business, technology and legal perspectives provides the foundation for these processes. This session explores how an effective information governance program can ensure that obsolete, redundant or transitory information no longer needed for operational, legal/regulatory, or historical purposes can be disposed, thereby improving timely and efficient access to relevant information during litigation.

Moderator: John Isaza, Partner, Rimon, P.C.

1:00 PM – 2:15 PM:

The Three R’s: Risk, Readiness, and Revenue!

Organizations are increasingly dependent on their electronic information for mission-critical decisions and transactions. Managing and mitigating the risks that are associated with information governance practices requires on-going monitoring and oversight. While law firms are increasingly called on to help clients address litigation and legal holds needs, this is only part of the picture.  Although Litigation Readiness prepares clients for potential litigation, new research, to be discussed in this session, shows that litigation readiness services provide a host of opportunities for the staff of law firms to help firm clients leverage the value of data beyond discovery.  These activities can potentially save organizations money, prepare them for litigation, and help law firm clients and even the law firms themselves find potential new revenue streams.

Speakers are: Bennett B. Borden, Partner and Chair, Information Governance and eDiscovery Group, Drinker Biddle & Reath LLP; Martin Tuip, Executive Director of Information Governance Solutions, ARMA International; Frank Lambert, Senior Consultant, Information Governance Solutions LLC, Theresa Shoch, Principal, UHY Advisors FLVS, Inc.  Moderator: John Isaza, Partner, Rimon, P.C.

Reducing Discovery Expenses: How to Accelerate the Discovery Process and Save Money

The cost related to discovery continues to draw the eye of lawyers and clients alike.  This session explores how technology and related analytical tools and processes can be applied to mitigate expenses.   Discussion points include:

  • The economics of eDiscovery
  • How software can reduce eDiscovery costs by maximizing the number of searches within a set timeframe, enabling litigation departments to refine searches, reduce data volume and lower costs
  • Cost savings and other benefits to legal teams and IT departments, during and beyond the eDiscovery process

Speakers are: Christopher Acosta, Director of Practice Support, Nossaman LLP; Claire Hass, Discovery Counsel, Google; Martyn Wiltshire, Director of Strategic IT Initiatives, SanDisk.  Moderator: David Cohen, Partner and Practice Group Leader, Global Records & E-Discovery Group, Reed Smith LLP.

2:45 PM – 4:00 PM:

You Owe it to Yourself: Professional Development in IG

A strategic approach to information governance is not only a best practice for any organization, but it is now a necessity.  The RIM and IG professional needs to be able to address issues on an organization-wide basis and to proactively solicit input from all the “vested interests” within the organization. This session reviews these “vested” perspectives and couples them with relevant professional development tools, certifications and accreditations to get you up-to-speed on managing your own information governance challenges in order to effectively advise clients.

Speakers are: Frank Lambert, Senior Consultant, Information Governance Solutions LLC, Theresa Shoch, Principal, UHY Advisors FLVS, Inc.  Moderator: John Isaza, Partner, Rimon, P.C.

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

So, what do you think?  Did you attend LTWC 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 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.

Welcome to LegalTech West Coast 2014! – eDiscovery Trends
 

Today is the start of LegalTech® West Coast 2014 (LTWC) and eDiscoveryDaily is reporting about the latest eDiscovery trends being discussed at the show.  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 Los Angeles area, come check out the show – there are a number of sessions (both paid and free) available and at least 50 exhibitors providing information on their products and services.

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 12 hits.  Sessions in the main conference tracks include:

10:30 AM – 11:45 AM:

Using Mobile Technology in Electronic Data Discovery

  • Examining the benefits of mobile e-discovery
  • Addressing security challenges in conducting EDD from mobile devices
  • Combatting issues and concerns posed by BYOD practices
  • Complying with court orders and avoiding sanctions International Privacy and its Impact on e-Discovery

Speakers are: Ronie M. Schmelz, Partner, Edwards Wildman Palmer LLP; Dionne Rainey, Partner, Hunton & Williams LLP; Richard Rushing, Chief Information Security Officer, Motorola Mobility; Petra K. LaFountain, Sr.eDiscovery Advisor, Baker & McKenzie, LLP.  Moderator: Hunter W. McMahon, JD, Director of Discovery & Technology, Driven Inc.

Leveraging Data and Analytics to Optimize Information Governance

  • Exploring  how analytical technologies and TAR tools improve efficiency and compliance
  • Using predictive coding for records retention and classifying unstructured data
  • Applying best practices from using predictive coding in e-Discovery to your IG initiatives

Speakers are: David Cohen, Partner and Practice Group Leader, Global Records & E-Discovery Group, Reed Smith LLP; Gordon J. Calhoun, Partner, Lewis Brisbois Bisgaard & Smith LLP.  Moderator: Bennett B. Borden, Partner and Chair, Information Governance and eDiscovery Group, Drinker Biddle & Reath LLP.

12:45 PM – 1:45 PM:

Beyond Predictive Coding: Incorporating New Technologies into Your E-Discovery Program

  • Computational linguistics
  • Data mining
  • Language translation
  • Other “future” techniques

Speakers are: Bennett B. Borden, Partner and Chair, Information Governance and eDiscovery Group, Drinker Biddle & Reath LLP; Jeffrey Fowler, Partner, O'Melveny & Myers; Thomas Barnett, Special Counsel, eDiscovery and Data Science, Paul Hastings.  Moderator: Amy Jane Longo, Senior Trial Counsel, Division of Enforcement U.S. Securities & Exchange.

The Convergence of Data Privacy, Data Security, E-Discovery and Information Governance for Mergers, Acquisitions and Divestitures

Exploring the business, regulatory and legal risks associated with poor Data Privacy, Data Security, E-Discovery and Information Governance practices in the context of business deals including:

  • Data Privacy: data transfer, anonymization, tokenization and aggregation concerns
  • Data Security: access rights, transfer restrictions, tokenization and BYOD
  • E-Discovery: legal holds, reasonable anticipation of litigation and deal-related issues
  • Information Governance: policy and schedule harmonization, “dark and dusty” data and documents and information of inherent value

Examining high-level due diligence “best practices” in these areas which address the issues and also provide:

  • Appropriate strategic plans to support these practices
  • Specific costs associated with those plans, in turn supported by vendor and service provider bids for related services

Speakers are: James Sherer, Counsel, Baker & Hostetler LLP; Eugenio Ortiz, Quantitative Financial Analyst, GMO; James Wolf, Senior Technical Director, H5.

2:15 PM – 3:30 PM:

Innovative Solutions that Facilitate Discovery in Government Investigations

  • Understanding the role of electronic evidence in government investigations
  • Tackling the challenges presented by data generated via social media, instant messaging and other emerging digital channels
  • Analyzing the key success factors for using predictive coding in government investigations.

Speakers are: John E. Davis, Executive Director and Counsel, Global eDiscovery, UBS AG; Casey Flaherty, Corporate Counsel, Kia Motors; Alex Ponce de Leon, Sr. Counsel, Litigation Group, Intel Corporation.  Speaker and Moderator: Patrick L. Oot, Co-Founder, Electronic Discovery Institute, Partner, Shook, Hardy & Bacon L.L.P..

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

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

Court Refuses to Dismiss Spoliation Claim Due to Defendant’s Failure to Produce Key Native File with Metadata – eDiscovery Case Law

In Raines v. College Now Greater Cleveland, Inc., 1:14-CV-00003 (N.D. Ohio June 3, 2014), Ohio District Judge James S. Gwin refused to dismiss the plaintiff’s claim of tortious spoliation of evidence due to the defendant’s failure to produce the metadata associated with a key report authored by the plaintiff.

In 2012, the defendant hired the plaintiff as Executive Director of the Higher Education Compact of Greater Cleveland. As part of her role, the plaintiff produced a Student Privacy Report, entitled Higher Education Compact of Greater Cleveland; Strategic Issues Paper: Student Information Access (the Student Privacy Report). The Student Privacy Report focused on potential violations of student privacy rights and the plaintiff identified concerns to her defendant employer that student privacy rights might be violated because the defendant allowed access to student information. The plaintiff filed a complaint after she was fired the next year by the defendant (and replaced with a substantially younger individual).

The plaintiff claimed spoliation of evidence when the defendants only produced the Student Privacy Report in physical form, without the native file and related metadata. The defendant claimed that the plaintiff could not make that claim because she was not able to show that this production disrupted the case and brought a motion to dismiss the claim of tortious spoliation of evidence (as well as the overall claim).

Judge Gwin noted that, “to state a claim for spoliation of evidence, a plaintiff must establish the following:

(1) A pending or probable litigation involving the plaintiff;

(2) Knowledge on the part of defendant that litigation exists or is probable;

(3) Willful destruction of evidence by defendant designed to disrupt the plaintiff’s case;

(4) Disruption of the plaintiff’s case; and

(5) Damages proximately caused by the defendant’s acts.”

The plaintiff alleged that the defendants knew litigation was likely, and “willfully” destroyed their electronic copy of her Student Privacy Report, claiming that the “metadata associated with the report has independent importance”.

While noting that the plaintiff’s spoliation claim “is not clear regarding damages”, Judge Gwin stated that the plaintiff “sufficiently alleges a claim to survive a motion to dismiss”. Therefore, the motion to dismiss the spoliation claim was denied and Judge Gwin stated, “We will later sort through whether any loss of metadata has caused damage”.

So, what do you think? Should metadata be required to be included in production of key documents? Or is production of a physical document sufficient? 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.

Order for Financial Records and Facebook Conversations Modified Due to Privacy Rights – eDiscovery Case Law
 

In Stallings v. City of Johnston City, No. 13-cv-422-DRH-SCW, 2014 U.S. Dist. (S.D. III. May 19, 2014), Illinois Chief District Judge David R. Herndon modified an earlier order by a magistrate judge in response to the plaintiff’s appeal, claiming that the order violated the privacy rights of the plaintiff, and of minor children with whom the plaintiff had held conversations on Facebook.

The initial order concerned discovery production of the plaintiff’s financial records through a previously issued subpoena. The plaintiff had objected to this production, on the grounds that the defendant had not specified the information sought from the records, namely an unidentified amount of money missing from the defendant’s accounts. In the objection, the plaintiff stated a belief that “seeking the financial records is a fishing expedition on the [defendant’s] part.” However, the magistrate judge ordered the production of the records and found upon review several cash deposits that were deemed potentially relevant, and then directed that the production of the plaintiff’s financial records would be subject to a protective order.

On the matter of the Facebook conversations, the plaintiff had produced approximately 466 pages of printed documents from the relevant account, with the names redacted, in response to the defendant’s discovery request for “[e]ach and every social media posting by [plaintiff] from 2011 to the present concerning her employment” at the defendant, “allegations of wronging against her, her suspension or termination, the investigation into missing money or wrongdoing … her lawsuit, her emotional or physical well-being, or any other matter identified in her Amended Complaint.” The defendant objected to the redaction of names, to which the plaintiff responded that they did not have an unredacted hard copy of the pages due to technical difficulties involving Facebook’s policies. The magistrate judge directed the plaintiff to produce either an electronic version of the Facebook pages, or a hard copy of unredacted pages.

The plaintiff then appealed on these orders, arguing that “defendants have presented no basis to override her right to privacy in her bank records afforded under the Illinois Constitution” and further that the request for unredacted Facebook data “violates her privacy, as well as the privacy of minors and other individuals not involved in this litigation.” At issue regarding the Facebook pages was that Facebook only allows users to download the contents of their entire account, which would require the plaintiff to produce all of her Facebook conversations since 2007 if submitted as discovery, when the defendant requested only documents from 2011 onward.

Upon reviewing the issue of the financial records, Judge Herndon found that any evidence of cash deposits made to the plaintiff’s account during the specified time period were relevant to the defendant, but agreed that the plaintiff has a right to privacy of bank records. Therefore, it was ordered that discovery of evidence would be limited to only those deposits made in cash, “demonstrating that they were made in cash and on what date.”

With regard to the discovery issues concerning Facebook pages, Judge Herndon noted that while the plaintiff states potential violation of privacy for minors, the plaintiff had not indicated clearly whether any of the conversation relevant to the litigation had taken place with minors. Further, it was noted that some of the redacted pages did contain relevant conversations, or conversations that could be deemed relevant at a later date, such as potential admissions against interest or inconsistent testimony. Therefore, the plaintiff was ordered to produce “a redacted hard copy of all relevant Facebook pages from 2011 to the present” as well as “the names and towns of residence of the individuals with whom [plaintiff] had relevant conversations.” Further, “[i]f any of the relevant conversations are between individuals who are currently minors, [plaintiff] is not to provide defendants with the minor’s name or town of residence unless Ordered by the Court at a later date.”

So, what do you think? Are sufficient steps being taken to protect individual rights to privacy concerning discovery? Please share any comments you might have or if you’d like to know more about a particular topic.

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