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eDiscoveryDaily

Pro Football Players Aren’t the Only Ones with Talent – eDiscovery Trends

In football, each team member has responsibilities.  For example, the quarterback throws the football (and sometimes changes the plays at the line of scrimmage), the receivers catch the football, the offensive line blocks and the defense tackles the guy with the ball.  Each player has responsibilities that align with their talents.  Likewise, the members of a litigation team have responsibilities that align with their talents.  Now, the Electronic Discovery Reference Model (EDRM) has created a new tool to align talents with their associated tasks.

Last week, EDRM announced the release of the EDRM Talent Task Matrix diagram and spreadsheet. As noted in their press release, the Matrix, collaboratively developed by EDRM’s Jobs Project Team, is a tool designed to help hiring managers better understand the responsibilities associated with common eDiscovery roles. The Matrix maps responsibilities to the EDRM framework, so eDiscovery duties associated can be assigned to the appropriate parties.

The EDRM Talent Task Matrix Spreadsheet is available in XLSX or PDF format.  It shows the EDRM Stage and Stage Area, the Responsibility within each stage, followed by the various positions that have responsibilities within the eDiscovery life cycle, as follows:

  • CXO
  • Senior Attorney
  • Attorney
  • Paralegal
  • Litigation Support
  • Discovery Analyst
  • Document / Data Analysis
  • Forensic
  • Records Management
  • Information Technology
  • Review Lead
  • Review Quality Control

The Matrix shows a “Yes” for each responsibility that each position participates in the responsibility.  There are 130 responsibilities listed in the Matrix, covering the entire EDRM life cycle.

EDRM’s Talent Task Matrix represents the joint efforts of the entire EDRM Jobs Project Team, spearheaded by co-leaders Maria Montoya of Bryan University and Keith Tom. Wade Peterson of Bowman & Brooke LLP led the development of the Talent Task Matrix diagram.

Comments on the EDRM Talent Task Matrix Diagram and the EDRM Talent Task Matrix are now being accepted and can be posted at the bottom of the page here. The comment period continues until February 28.  It’s quite in-depth, so they might have to consider extending it.

Of course, when it comes to football, only one team can apply their talent best to accomplish their task – winning the game!  Congrats to the Baltimore Ravens – winners of Super Bowl XLVII!  Not even a power outage could keep them from accomplishing their goal.

So, what do you think?  Could this Matrix be useful to managing the resources in your litigation project?  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 Trends: Thursday LTNY 2013 Sessions

As noted Tuesday and yesterday, LegalTech® New York 2013 (LTNY) is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Today is the last day to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and over 225 exhibitors providing information on their products and services, including (shameless plug warning!) CloudNine Discovery™ at booth 2006.

While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2013 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 36 hits.  More eDiscovery sessions happening!  Here are some of the sessions in the main conference tracks:

10:30 – 11:45 AM:

The Beginners Guide to Technology Assisted Review

This session is aimed at lawyers or smaller firms who are aware of this innovative trend which is sweeping the legal technology industry. This session is designed to assist you in understanding when to use it. How you can implement it. How to manage the pitfalls and lessons learnt. The pros will be provided in real life examples to ensure attendees can action the learning from this session.

Speakers are: Hon. Ron Hedges, Former US Magistrate Judge; Sarah Jane Gillett, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.

The ROI of Predictive Coding

The rapid increase in the volume and sources of Electronically Stored Information (ESI) has changed how corporate legal departments plan for and react to litigation and eDiscovery. In the past, traditional electronic discovery processes relied on “linear review”, a manual, expensive, time consuming and error-prone process in which teams of contract attorneys reviewed hundreds of thousands or millions of documents one page at a time to determine responsiveness. This traditional linear review process has driven the cost of eDiscovery up dramatically.

To address this spiraling cost, corporate legal departments and their external counsel have begun to embrace Predictive Coding, a disruptive technology that is changing the way legal review is conducted.

In this session industry experts will discuss:

  • What Predictive Coding is and what differentiates it from traditional linear review
  • How the Predictive Coding process improves time to respond as well as accuracy and consistency of results to provide an extremely high return on investment (ROI)
  • How Predictive Coding is forcing the eDiscovery industry to have a discussion of review quality that has not occurred before
  • ROI comparisons between traditional linear review and Predictive Coding for small, medium and large cases

Panelists are: Woods Abbott, Director of Legal Operations, Raytheon; Pam Davis, Senior Discovery Counsel, Google; Steve Berrent, Managing Director, WilmerHale Discovery Solutions, WilmerHale; Scott Milner, Partner, Morgan, Lewis & Bockius LLP.  Moderator: Drew Lewis, eDiscovery Counsel, Recommind.

LegalTech Boot Camp I

In the first session of the three hour intensive LegalTech Boot Camp, Craig Ball and Michael Arkfeld will rapidly take you through the ins and outs of e-Discovery today. This 90 minute session will be an intense look at today’s most essential information, decision making considerations and technology.

Attendees may join either or both sessions. They will receive materials from both Boot Camp I and II and specific time will be set aside for Q&A with session leaders.

Speakers are: Craig Ball, President, Craig D. Ball, P.C.; Michael Arkfeld, Principal, Arkfeld & Associates

Big Data – Big Hype or Big Opportunity?

  • What is Big Data and where did big data come from?
  • Value proposition of Big Data?
  • Market ready or still maturing?
  • Major players and how they are shaping Big Data

Panelists are: Galina Datskovsky, CRM, Ph.D, Senior Vice President, Information Governance, Autonomy, an HP Company; Julie Colgan, CRM, IBM; Eric Hunter, Director of Knowledge, Innovation & Technology Strategies, Bradford & Barthel, LLP; Jason R. Baron, Director of Litigation, National Archives and Records Administration.  Moderator: Barry Murphy, Co-founder and Senior Analyst, eDJ Group, Inc.

12:15 – 1:45 PM:

Big Data in Practice

  • How do you implement Big Data?
  • Does Big Data mean All Data?
  • How is big data being used? (case studies/use cases)
  • Will in-stream analytics lead to knee-jerk management?

Panelists are: Galina Datskovsky, CRM, Ph.D, Senior Vice President, Information Governance, Autonomy, an HP Company; Julie Colgan, CRM, IBM; Eric Hunter, Director of Knowledge, Innovation & Technology Strategies, Bradford & Barthel, LLP; Rich Vestuto, Esq., Director, Deloitte.  Moderator: Barry Murphy, Co-founder and Senior Analyst, eDJ Group, Inc.

1:45 – 3:00 PM:

TAR, Contract Review and Efficiency: Are they Intrinsically Linked?

Many firms are looking to make their clients’ spend go further. The combination of using TAR with an outsourced or managed review can incrementally increase efficiency and deliver time and cost savings. This session will examine the cost, process and structure needed to run a successful managed review – taking advantage of the latest industry learning.

Speakers are: Pallab Chakraborty, Director of eDiscovery, Oracle; Patrick Oot, Co-Founder, Electronic Discovery Institute; Special Counsel, U.S. Securities and Exchange Commission.

Defensible Disposal; If it doesn’t exist I don’t have to review it

Most corporate legal departments are still looking for ways to reduce, or at least stop the growth, of their annual legal budgets. One of the most obvious targets for cost reduction in any legal department is the cost of responding to eDiscovery, including the cost of finding all potentially responsive ESI (electronically stored information), culling it down and then having in-house or external attorneys review it for relevance and privilege.

Many cost reduction strategies have been implemented over the years but those strategies don’t address the real problem; the huge and growing amount of unmanaged and potentially valueless electronic information floating around companies. The straight forward and common sense way to reduce eDiscovery cost (and risk) is to better manage ESI, including disposing of unneeded data that could be subject to an eDiscovery inquiry in the future.

In this session, we will discuss:

  • The cause and effect associated with uncontrolled electronic information growth especially in relation to the eDiscovery process
  • The current state of the art of Information Management technologies, again in relation to eDiscovery requirements
  • How categorization techniques can be used to defensibly and effectively manage and dispose of unneeded data

Panelists are: Cliff Dutton, Senior Vice President, Director of E-Discovery and Vendor Management, AIG; John Rosenthal, Partner, Winston & Strawn LLP; Bennett Borden, Chair, Electronic Discovery & Information Governance Section, Williams Mullen; Dean Gonsowski, AGC / Sr. Director of Business Development, Recommind.  Moderator: Bill Tolson, Senior Product Marketing Manager, Recommind.

LegalTech Boot Camp II

In the second session of the three hour intensive LegalTech Boot Camp, Craig Ball and Michael Arkfeld will continue their rapid take on the ins and outs of e-Discovery today. This 90 minute session will be an intense look at today’s most essential information, decision making considerations and technology. Attendees may join either or both sessions. They will receive materials from both Boot Camp I and II and specific time will be set aside for Q&A with session leaders.

Speakers are: Craig Ball, President, Craig D. Ball, P.C.; Michael Arkfeld, Principal, Arkfeld & Associates

Does Big Data = Big Risk?

  • What are the governance implications of Big Data?
  • Is this the end of records management?
  • What affect will Big Data implementations have on litigation readiness?

Panelists are: Galina Datskovsky, CRM, Ph.D, Senior Vice President, Information Governance, Autonomy, an HP Company; Julie Colgan, CRM, IBM; Jason R. Baron, Director of Litigation, National Archives and Records Administration; Rich Vestuto, Esq., Director, Deloitte.  Moderator: Barry Murphy, Co-founder and Senior Analyst, eDJ Group, Inc.

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?  Have you attended LTNY this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

Wednesday LTNY 2013 Sessions – eDiscovery Trends

As noted yesterday, LegalTech® New York 2013 (LTNY) is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and over 225 exhibitors providing information on their products and services, including (shameless plug warning!) CloudNine Discovery™ at booth 2006.

While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2013 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 34 hits.  More eDiscovery sessions happening!  Here are some of the sessions in the main conference tracks:

10:30 – 11:45 AM:

E-Discovery and the Cloud – A Checklist for Success

What is your organization’s cloud strategy? For all of the benefits of cloud computing – from reduced infrastructure to greater accessibility – new challenges are emerging for the e-discovery process. From preservation to security, legal and IT teams need to weigh the new responsibilities and opportunities available with cloud applications.

To assist in the evaluation process, this session will discuss:

  • Key legal considerations for moving to the cloud, including the differences between public and private clouds
  • Key technical considerations for moving to the cloud, including security, 24/7 access and data privacy
  • Effectively negotiating service level agreements with cloud providers

Panelists are: Joel Jacob, FTI Technology; Caroline Sweeney, Dorsey & Whitney; Greg Buckles, eDiscoveryJournal; Mark Browne, Practice Support Regional Manager – Eastern Region, Paul Hastings.

Are We Here to Bury Search Terms?

“I come to bury Caesar, not to praise him. The evil that men do lives after them; the good is oft interred with their bones.” – William Shakespeare

Many pundits today are suggesting that search terms may be inadequate for locating truly relevant information in litigation. But do search terms still have a place in the e-discovery process? Are we “interring the good” without adequate thought? This session will cover the use of search terms in litigation, as well as discuss using technology assisted review in order to balance both cost and risk in responding to discovery requests in litigation and governmental investigations.

Panelists are: Rob Kidwell, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.; Gail Foster, Baker Botts; Matthew Baker, Bracewell & Giuliani; David Chaumette, Chaumette PLLC; The Honorable Andrew J. Peck, United States Magistrate Judge, Southern District of New York.  Moderator: Carolyn Southerland, Huron Legal.

Creative EDiscovery Problem Solving

There is no right answer. There is no wrong answer. There is only the BEST answer. This session will help you find the best possible solution to your ediscovery problems. In this brainstorm power session, you will:

 

  • Tackle the latest ediscovery problems
  • Develop action plans
  • Discuss meaningful ways to implement solutions

Panelists are: David Yerich, Director of Ediscovery, United Health Group; Martha Harrison, Ediscovery Attorney, Ropes & Gray; Rachel Rubenson, Assistant Vice President – Legal, Barclays.  Moderator: Jonathan Sachs, Regional Manager, Kroll Ontrack.

12:30 – 1:30 PM:

Meaning Based eDiscovery: Case Studies and Lessons Learned from the Use of Predictive Coding and Advanced Analytics

Traditional document discovery and linear review methods are no longer cost effective, let alone practical, for matters of all sizes. Too much valuable staff time and client dollars are sunk in an ocean of email. Join this session to hear best practices and real-life examples from leading law firms and thought leaders on a meaning-based approach to computer assisted review – how it is used today to optimize review and production and help lawyers improve cost and work product quality in the eDiscovery process.

Panelists are: Thomas A. Lidbury, Partner, Drinker Biddle & Reath LLP; Alan Winchester, Partner, Harris Beach PLLC; Jennifer Keadle Mason, Esq., Managing Partner, Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP; George Tziahanas, SVP, Legal and Compliance Solutions, HP Autonomy; Maura R. Grossman, Counsel, Wachtell, Lipton, Rosen & Katz.

2:00 – 3:15 PM:

E-Discovery in 2015 – How Corporations Will Do More with The Right Blend of Lawyers, Economics, Statistics and Software (LESS)

What will predictive coding’s long-term impact be on e-discovery and the legal profession? What will be the right balance of people, processes and technology in a mature and fully optimized e-discovery program? This interactive roundtable discussion will bring together legal professionals, academics, economists and statisticians to share the e-discovery industry roadmap and what corporations and law firms can do today to plan for e-discovery in 2015.

Attendees of this session will learn:

  • The long-term roadmap for e-discovery software development, including predictive coding
  • The key skills and training attorneys will need in order to effectively manage e-discovery, including statistics
  • Advice on how legal teams can plan and prepare for e-discovery in 2015

Panelists are: Joe Looby, FTI Technology; Judge Faith Hochberg, United States District Court for the District of New Jersey; Dawn Hall, FTI Consulting; Daniel Martin Katz, Michigan State University.

The Evolving Role of Analytics

There has been much discussion of the evolution of analytics. For years various analytic tools have been used to QC productions after human review, and now both sides are relying on analytics of various types to find the key documents in a matter. The Da Silva Moore and Kleen Products cases have shown us that parties—and judges – can disagree on the best processes for locating potentially relevant documents. What do the rules require? Are parties obligated to be transparent in their processes to show that their methods are reasonable? If the standard is reasonableness, what does the reasonable standard require?

Panelists are: Paul Zimmerman, Christian & Small; David Chaumette, Chaumette PLLC; Hon. Ron Hedges, Former US Magistrate Judge; Sarah Jane Gillett, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.  Moderator: Carolyn Southerland, Huron Legal.

A Live Simulation: TAR, CAR, IRT, Predictive Coding

This teaching exercise will involve audience participation so be ready to take part in this revolutionary experience. Your assistance categorizing documents, debating defensibility and more will help mold future TAR thinking.

Panelists are: Ralph Losey, Partner, Jackson Lewis; Jason R. Baron, Director of Litigation, National Archives and Records Administration.  Moderator: Chris Wall, Senior Director, Kroll Ontrack.

3:45 – 5:00 PM:

Advice from Counsel: Trends that Will Change E-Discovery (and what to do about them now)

For the fourth consecutive year, corporate counsel of Fortune 1000 companies are sharing their thoughts on e-discovery, and this year the focus is on the evolving trends that will impact the legal industry for years to come. From incorporating analytics for greater legal review productivity, to effectively managing a “Bring Your Own Device” (BYOD) workplace environment, attend this session to learn about where e-discovery is going, and what you can do today to better prepare for these changes.

Discussion topics to include:

  • The legal and technical ramifications of a Bring Your Own Device (BYOD) environment
  • The role of analytics in improving legal review
  • Going on offense against Big Data
  • The future of information governance

Panelists are: Ari Kaplan, Ari Kaplan Advisors; Sophie Ross, FTI Technology; Mai Pham Robertson, Fannie Mae; Vincent Miraglia, Chief Counsel for Litigation, International Paper; Daniel Boland, Associate, Pepper Hamilton LLP.

Will Technology Assisted Review Save Money?

The studies comparing other methods of search to technology assisted review (predictive coding) show that the use of TAR results in the identification of fewer non-relevant documents and a larger percentage of potentially relevant documents compared to methods such as keyword search. So why do we assume that the use of TAR will result in cost savings? Will there really be less data to go to human review, or can human review be avoided? Are further analytics required?

Panelists are: Ignatius Grande, Hughes Hubbard & Reed LLP; Sarah Jane Gillett, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.; Paul Zimmerman, Christian & Small; Rob Kidwell, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.  Moderator: Hon. Ron Hedges, Former US Magistrate Judge.

A Panel of Experts: A Candid Conversation

A panel of expert judges and lawyers will discuss cutting edge ediscovery challenges. Bring your questions for prestigious members of the bench and bar.

Panelists are: Honorable Lisa Margaret Smith, United States Magistrate, Southern District of New York; Honorable James C. Francis, United States Magistrate, Southern District of New York; Honorable Frank Maas, United States Magistrate, Southern District of New York.  Moderator: Anthony J. Diana, Partner, Mayer Brown.

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 LTNY this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

Welcome to LegalTech New York 2013! – eDiscovery Trends

Today is the start of LegalTech® New York 2013 (LTNY) and, for the third year in a row, eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the New York area, I encourage you to check out the show – there are a number of sessions (both paid and free) available and over 225 exhibitors providing information on their products and services, including (shameless plug warning!) CloudNine Discovery™ at booth 2006.

While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2013 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 65 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

10:30 – 11:45 AM:

eDiscovery 3.0: Emerging Practices

Advances in technology continue to change the way eDiscovery is performed. Most notably, predictive coding, or “technology assisted review,” is becoming more widely accepted as part of the document review process. There continue to be questions about how it should be used, what level of disclosure is required, and the practical impact that it will have on the eDiscovery workflow. In addition, the strategies, implications, and challenges for predictive coding are still being addressed, prompting a reconsideration to a quality control approach. This presentation will offer several strategies for improving quality control while using predictive coding for document review.

Presented by: Manfred Gabriel, Forensic Principal, KPMG LLP.

Risk and Reward in the Cloud: Case Law and Cost Savings

As more organizations opt for cloud-based solutions to lower costs or meet stringent privacy and security requirements, questions on collection, legal jurisdiction, and privacy are beginning to arise.? This session explores emerging case law around the cloud and covers topics such as data ownership, multi-tenanted environments, and cross-border litigation.?? You’ll further learn how cloud computing can provide new levels of security, collaboration, agility, speed, and cost savings, while defensibly enforcing comprehensive information governance.

Panelists are: Ken Rashbaum , Esq., Principal, Rashbaum Associates, LLC; Tim Carroll, Partner, Perkins Coie’s Commercial Litigation Practice.  Moderator: George Tziahanas, SVP, Legal and Compliance Solutions, Autonomy, an HP company.

Statistical Sampling to Enhance & Defend Your E-Discovery Practice

Although the complexities of statistics may seem daunting to many lawyers, statistical sampling is fast becoming essential to the discovery process. In e-discovery, statistical sampling can help increase confidence, reduce cost and improve defensibility. But the advantages of sampling are rarely realized, simply because most lawyers are not statisticians. This panel will discuss what in-house counsel needs to know about statistical sampling in e-discovery matters, including:

  • The basics of statistical sampling
  • Why in-house counsel should consider incorporating statistical sampling into the e-discovery process
  • Opportunities to use statistical sampling
  • Key decisions counsel must make when using statistical sampling

Panelists are: Pallab Chakraborty, Director of eDiscovery, Oracle; Gordon V. Cormack, Professor at the David R. Cheriton School of Computer Science, University of Waterloo; Maura R. Grossman, Counsel, Wachtell, Lipton, Rosen & Katz; Jim Wagner, Chief Executive Officer, DiscoverReady LLC.  Moderator: Maureen O’Neill, Vice President of Discovery Strategy, DiscoverReady LLC.

Cooperation: Choosing Your Battles

Mock hearing format

Many feel that protracted discovery battles waste time for no purpose. This session will provide attendees with an understanding of which disagreements to resolve with cooperation, and which are worth fighting on behalf of your client.

Panelists are: Anne Kershaw, Founder, A. Kershaw, P.C., [Role: Attorney]; Gail Gottehrer, Partner, Axinn, Veltrop & Harkrider LLP, [Role: Attorney]; David J. Waxse, United States Magistrate Judge, District of Kansas.  Facilitator: Brooke J. Oppenheimer, eDiscovery Attorney, Axinn, Veltrop & Harkrider LLP.

12:30 – 1:30 PM:

Facing the Cliff: Can Proportionality Avert the eDiscovery Crisis?

Proportionality has been touted by industry cognoscenti as the bridge over the chasm of troubling eDiscovery disputes. Despite the hype, many doubt that proportionality can prevent courts, clients or counsel from plummeting into the abyss of spiraling costs and lengthy delays that often characterize discovery. For example:

  • Can predictive coding facilitate proportional discovery when lawyers are unwilling to share their training set of documents?
  • Should proportionality standards apply to the preservation of ESI to help address the high costs of retaining so much data?
  • Will the proportionality rule ever be used to rein in lawyers and judges that have distorted the standard of discovery from reasonableness to perfection?

Please join us as Philip Favro, Discovery Counsel, Symantec Corp. leads a distinguished panel of experts in a lively debate on these issues

Panelists are: Shawn Cheadle, Esq., General Counsel, Military Space, Lockheed Martin Space Systems Co.; Wendy Curtis, Esq., Corporate Counsel, Akin Gump Strauss Hauer & Feld LLP; Hon. Frank Maas, United States Magistrate Judge, Southern District of New York; Ariana J. Tadler, Esq., Partner, Milberg LLP. Moderator: Philip Favro, Discovery Counsel, Symantec Corp.

2:00 – 3:15 PM:

Predictive Coding – Emerging Best Practices

As predictive coding makes its way from the Nerdsville to Main Street, the industry has had to develop new methods and procedures to accommodate and leverage the technology. Similarly, new protocols have been drafted, negotiated and agreed. In this session, proposed guidelines for a predictive coding engagement will be presented. The panel members, drawing on their pioneering experience in predictive coding projects, will discuss and comment on the proposed guidelines, touching on legal and protocol considerations, technological capabilities and constraints, and requirements for statistical validity.

Panelists are: Bennett B. Borden, Chair, Electronic Discovery and Information Governance Section, Williams Mullen; Stephanie A. “Tess” Blair, Partner, Morgan, Lewis & Bockius LLP; Sean M. Byrne, Principal, Byrne Law Group; Thomas C. Gricks III, Partner, Schnader Harrison Segal & Lewis LLP. Moderator: Warwick Sharp, Vice President Marketing and Business Development, Equivio.

Key Ethical Concerns for Lawyers in e-Discovery

Attorneys conducting and supervising extensive electronic discovery find themselves negotiating an evolving ethical landscape that is impacted by ever increasing data volumes, a lack of bright line rules as to how and when those data volumes must be preserved, and constant changes in how the resultant data can be reviewed and produced using traditional and technology assisted review methodologies. This panel will address how lawyers can recognize and comply with their ethical obligations while:

  • Carrying out and supervising the duty to preserve relevant ESI
  • Meeting and conferring on e-discovery issues with the appropriate level of transparency and cooperation.
  • Managing the processing, review, and production of large volumes of documents and information.
  • Employing sophisticated e-discovery software tools and processes including technology assisted review
  • Accessing and using information from social media sites in discovery.

Panelists are: Michelle Spak, Senior Counsel, Duke Energy; M. James Daley, Partner, Daley & Fey, LLP; Jim Wagner, Chief Executive Officer, DiscoverReady LLC; Eric Cottrell, Partner, Parker Poe; Elizabeth Hyon, Assistant Vice President, Legal Barclays Capital; Craig Cannon, Global Discovery Counsel, Bank of America. Moderator: Matt Miller, SVP, Marketplace Leader & IP Practice Group Leader, DiscoverReady LLC.

Interoperability and Data Reuse in the ERA of Big Data and eDiscovery

IBM and HP both make the bold claim that 90% of all data ever created was produced in the last two years. Given the data deluge, corporate legal departments are starting to embrace the concept of interoperability including the need to capture institutional knowledge, seek greater team collaboration, repurpose and reuse data, and promote greater consistency in business process to achieve broader institutional benefits. The growth of data has also led to eDiscovery becoming a key part of the corporate information governance paradigm.

Learn from our experts on how to manage big data. Topics may include:

  • How enterprise information assets can be efficiently accessed and used by corporate legal departments while retaining and leveraging legal work product.
  • How technology and process can be combined to improve team collaboration and guard against institutional memory loss.
  • New technologies beyond clustering and predictive coding that the big data revolution may bring to the eDiscovery toolkit

Predictions on what the big data revolution and convergence with information governance mean for eDiscovery, corporate legal spend and operational efficiency.

Panelists are: David Leone, Esq., Director of LSS, Saul Ewing LLP; Chris Mellen, Digital Forensics PM, Digital Forensics & Advanced Analytics, SAIC; Chad Papenfuss, Litigation Support Manager, FTC; Susan Sparrow, Senior Program Manager General Dynamics Information Technology, HSCD, Justice Programs. Moderator: Anita Engles, VP of Product Marketing, Daegis.

3:45 – 5:00 PM:

The Unforseen: eDiscovery Project Management

The panel will discuss the project-management challenged that result from unforeseen events in e-discovery projects. We will discuss a diverse range of practical topics, including:

  • How do you respond to change in scope after the document review has started?
  • How do you adapt your TAR strategy when instructions change?
  • How to use prioritization, data analysis, and workflow to adopt to changes in budget or time available?

Panelists are: Matt Clarke, Shareholder, Ryley Carlock & Applewhite Document Control Group; Michael Fluhr, Discovery Counsel, Carroll Burdick & McDonough; Meagan Thwaites, Litigation Counsel, Chief Litigation Office, Boston Scientific Corporation; Vincent Miraglia, Chief Counsel, International Paper Company; Renato Opice Blum, CEO and Partner, Opice Blum, Bruno, Abrusio e Vainzof. Moderator: Manfred Gabriel, Forensic Principal, KPMG LLP.

State of the E-Discovery Software & Service Market

For those of us who remember e- discovery in its infancy, we can appreciate the growth of the industry. But no one back then predicted the absolute explosion of data at such mind boggling rates, the challenges it imposes, the changing business models in the fight for survival, progress on the information governance front and the growing pains practitioners and vendors across the board have faced. The analyst community will help us look back at major impacts and make predictions into the future, with their unbiased and pragmatic advice for practicing professionals.

Panelists are: Vivian Tero, Program Director Governance, Risk & Compliance (GRC) Infrastructure, IDC; Karl Schieneman, President, Review Less, LLC; Barry Murphy, Co-Founder, Principal Analyst, eDJ Group, Inc; Laura A. Zubulake, Author of Zubulake’s e-Discovery: The Untold Story of my Quest for Justice.

Predictive Coding for Investigations & Regulatory Matters

Over the last two years, there has been an avalanche of commentary on how automated review and predictive coding tools can and will be used to supplement or replace current e-discovery processes. This year, we’ve seen corporate and law firm clients actually dip their toes into the pool of automation, only to face resistance from opponents, mostly due to lack of understanding of automation.

We will focus our discussion on how to tackle:

  • Your duty to explain your use of automation in various cases, including as a way to organize data in a “produce all” request vs. a targeted production
  • Regulators’ use of Technology Assisted Review (“TAR”) on inbound productions, and how it may affect your outbound strategies
  • Best use cases for using predictive coding in internal investigations such as insider trading, where those under investigation are likely to use code rather than keywords

Panelists are: Marla Bergman, Vice President, Assistant General Counsel, Legal and Internal Audit, Goldman Sachs; Jim Wagner, Chief Executive Officer, DiscoverReady LLC. Moderator: Amy Hinzmann, SVP – Financial Services Practice Group Leader, Marketplace Leader, DiscoverReady LLC.

What is a Quality eDiscovery Process and How Do You Defend It?

The lack of formalized standards in eDiscovery poses challenges with respect to both methodology and defensibility. With the high stakes of litigation, growing expectations on the part of the judiciary, and the increasing frequency of spoliation motions, the components of the eDiscovery process continue to be susceptible to attack. As a result, litigants are often forced to focus on defense of their process, rather than the merits. Moreover, courts are frequently asked to evaluate the reasonableness of a particular process in retrospect, only after a party has made a significant investment in technology and resources. These issues should be considered and faced head on, from the inception of a matter.

This session is designed to provide practical guidance on how to develop a defensible eDiscovery process and how to withstand an attack. It will focus on the most frequently challenged aspects of the eDiscovery process and address such questions as:

  • What aspect of the eDiscovery process are most at risk of challenge?
  • What steps can parties take proactively to avoid an attack on their process?
  • What showing must be made before an eDiscovery process can be attacked?
  • How are these challenges likely to be made in motion practice and case management conferences?
  • What do parties need to submit to the court in defense of their process?
  • What standards govern judicial scrutiny and evaluation?
  • Is there a need for formal process standards and, if so, is it possible to develop them at this point in time?
  • What impact would potential new standards have on the vendor and legal community?

Panelists are: David Horrigan, Esq., Analyst, E-Discovery and Information Governance, 451 Research, a division of The 451 Group; Jason R. Baron, Director of Litigation, National Archives and Records Administration; Lauren Schwartzreich, E- Discovery Counsel, Littler Mendelson; Mira Edelman, Discovery Counsel, Google. Moderator: Doug Stewart, EnCE, Vice President of Technology and Innovation, Daegis.

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

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

So, what do you think?  Are you planning to attend LTNY this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Is 31,000 Missed Relevant Documents an Acceptable Outcome? – eDiscovery Case Law

It might be, if the alternative is 62,000 missed relevant documents.

Last week, we reported on the first case for technology assisted review to be completed, Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, in which predictive coding was approved last April by Virginia State Circuit Court Judge James H. Chamblin.  Now, as reported by the ABA Journal (by way of the Wall Street Journal Law Blog), we have an idea of the results from the predictive coding exercise.  Notable numbers:

  • Attorneys “coded a sample of 5,000 documents out of 1.3 million as either relevant or irrelevant” to serve as the seed set for the predictive coding process,
  • The predictive coding “program turned up about 173,000 documents deemed relevant”,
  • The attorneys “checked a sample of about 400 documents deemed relevant by the computer program. About 80 percent were indeed relevant. The lawyers then checked a sample of the documents deemed irrelevant. About 2.9 percent were possibly relevant”,
  • Subtracting the 173,000 documents deemed relevant from the 1.3 million total document population yields 1,127,000 documents not deemed relevant.  Extrapolating the 2.9 percent sample of missed potentially relevant document to the rest of the documents deemed non relevant yields 32,683 potentially relevant documents missed.

“For some this may be hard to stomach,” the WSJ Law Blog says in the article. “The finding suggests that more than 31,000 documents may be relevant to the litigation but won’t get turned over to the other side. What if the smoking gun is among them?”

However, the defendants, in arguing for the use of predictive coding in this case, asserted that “manual review of the approximately two million documents at issue would be extremely costly while locating only about 60 percent of potentially relevant documents”.  Of course, the rise in popularity of technology assisted review is not only due to the cost savings but also the growing belief of increased accuracy over human review as concluded in the oft-cited Richmond Journal of Law and Technology white paper from Maura Grossman and Gordon Cormack, Technology-Assisted Review in e-Discovery can be More Effective and More Efficient than Exhaustive Manual Review.

Assuming that the defendants’ effectiveness estimate of manual review is reasonable, then it could be argued that more than 62,000 relevant documents could have been missed using manual review at a much higher cost for review.  While we don’t know what the actual number of missed documents would have been, it’s certainly fair to conclude that the predictive coding effort saved considerable review costs in this case with comparable, if not better, accuracy.

There will be several sessions at Legal Tech® New York 2013 starting tomorrow discussing aspects of predictive coding.  For a preview of LegalTech, click here.

So, what do you think?  What do you think of the results?  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.

Judges and Social Media Don’t Mix Either – eDiscovery Trends

As a graduate of Baylor University, I thought I would have found a way to work last year’s Heisman Trophy winner, Baylor’s own Robert Griffin III, into a blog post before this year’s Heisman winner, but this story involving Johnny Manziel is too good to pass up as an example of how pervasive social media has become in our daily lives and how it can impact the legal process.

A while back, we published a post called eDiscovery Trends: Jurors and Social Media Don’t Mix, where we reported on a case of juror misconduct when one of the jurors actually attempted to “Friend” one of the defendants on Facebook.  Apparently, judges aren’t immune to judicial slip ups on Facebook either.

Manziel has been regularly in the news lately, both for his stellar play on the football field (deservedly becoming the first freshman ever to win college football’s top individual award) and his activities off the field.  According to the Bleacher Report, he received a speeding ticket this past weekend while traveling through Ennis, Texas.  It happens.  And, if it were you or me, nobody would give it a second thought (or know about it unless we told them).  However, Judge Lee Johnson, the judge who saw the ticket come in, decided to post on his Facebook page about it, as follows:

“Too funny. So it seems a certain unnamed (very) recent Heisman Trophy winner from a certain unnamed ‘college’ down south of here got a gift from the Ennis P.D. while he was speeding on the 287 bypass yesterday. It appears that even though the OU defense couldn’t stop him, the City of Ennis P.D. is a different story altogether. Time to grow up/slow down young ‘un. You got your whole life/career ahead of you. Gig Em indeed.”

He then followed up with a correction, saying: “I mean to say ‘allegedly speeding,’ my bad.”

Now, according to a report by Yahoo! Sports, Ennis City Manager Steve Howerton has since apologized for the comments, calling them “insensitive and inappropriate,” and the city has reprimanded Johnson in the wake of his post.  The report also notes that “Howerton said Johnson has worked in public service for 25 years and had an unblemished record. Howerton said Johnson attempted to apologize to Manziel and that the incident is still under investigation.”

It’s a minor case involving a minor infraction, but it still illustrates how anybody can get carried with social media and impact the legal system or their business, as All Pro Houston Texans running back Arian Foster found out over a year ago.  Even judges have to learn to keep in mind that all important adage: think before you hit send.

So, what do you think?  Have you seen other examples of social media impacting the legal process?  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.

Has the Super Bowl Pregame Show Started Yet? How about the LegalTech Pregame Show? – eDiscovery Trends

Each year, it seems that the pregame show for the Super Bowl gets longer and longer.  However, as the Super Bowl is slated for next Sunday, it hasn’t started – yet.  However, with Legal Tech® New York 2013 slated to start next Tuesday, maybe it’s appropriate to have a “LegalTech Pregame Show”!  Leave it to us to link legal technology with the biggest football game of the year!

Next week, as we always do, eDiscoveryDaily will post each day about the activities and sessions of the day at the show related to eDiscovery.  But, here are a few tidbits to get you excited for next week’s show:

  • According to the Exhibitors page, there are at least 225 exhibitors at the show, same number we reported last year.  So, there are plenty of providers to check out in a variety of areas, including eDiscovery.
  • Performing a “find” on the LTNY conference schedule for “discovery” or “information governance” yields 135 total hits.  So, there will be plenty to talk about at the show.
  • You can download a LegalTech app to your iPhone, iPad or Android for the show.  It provides a veritable plethora of options, from viewing the exhibitors and tracking which ones you’ve seen (or want to bookmark to see), viewing session details and adding sessions that you plan to attend to your own phone calendar and checking out the LegalTech Twitter feed.  There’s even a “Local Places” icon to view everything from attractions to bars and lounges to dining to shops in the area!  Just go to the app store for your device and search for “legaltech”.

eDiscoveryDaily will also be interviewing several eDiscovery thought leaders again this year and publishing the interviews in the coming weeks.  We will also be tweeting from the show from our @cloud9discovery Twitter handle.

Speaking of CloudNine Discovery, we will be exhibiting at the show again for the third year in a row (booth #2006)  We will be giving away a cool vibration speaker that connects to devices via USB connection and also can play tunes from a micro SD card.  We’ll be demonstrating the speaker by playing tunes periodically during the show.  We will have other giveaway items as well, including Frisbees that fold up into a pocket container and open up with an impressive “fwump” when they’re pulled out of the container.  We’re the “fun” booth at the show, so stop by!

We will also be previewing the initial release of the mobile version of OnDemand®, our eDiscovery review application, at the show and will also be offering a special version of our FREE No Risk Trial of OnDemand for the first data set on any new OnDemand project.  It’s a unique “try it for free” program.

We look forward to seeing everybody at the show!

So, what do you think?  Are you attending LegalTech next week?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © CBS Sports

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.

Another Social Media Request Denied as a “Carte Blanche” Request – eDiscovery Case Law

After last week’s recap of 2012 cases, it’s time to start discussing cases in 2013!

In Keller v. National Farmers Union Property & Casualty Co., No. CV 12-72-M-DLC-JCL, (Dist. Court, D. Montana Jan. 2, 2013), the defendants filed a motion to compel the plaintiff’s to respond to various discovery requests.  While Magistrate Judge Jeremiah Lynch granted their request to compel the plaintiffs to produce medical records, he denied the defendant’s request “to delve carte blanche into the nonpublic sections of Plaintiffs’ social networking accounts”.

In this breach of contract case claiming damages in the form of unpaid medical expenses and $100,000 in uninsured motorist benefits against the defendant who insured the plaintiff under an automobile liability policy after an automobile accident, the defendant filed a motion to compel the plaintiffs to respond to various discovery requests.  As part of the motion to compel, the defendants requested “any and all records, reports or other documentation for each physician or other health care provider with whom Plaintiff Jennifer Keller has treated or consulted for the period beginning January 1, 2000 up to August 26, 2008”.  The defendants also requested “a full printout of all of [each of the plaintiff’s] social media website pages and all photographs posted thereon including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, myLife, Instagram and MeetMe from August 26, 2008 to the present”.

Noting that “Plaintiffs have not shown or argued that producing those records would be unduly burdensome, or that National Farmers Union propounded the discovery request for purposes of harassment”, Judge Lynch granted the motion to compel with regard to the medical records.  However, with regard to the request for social media web pages, while noting that the “content of social networking sites is not protected from discovery merely because a party deems the content ‘private’”, Judge Lynch referenced Tompkins v. Detroit Metropolitan Airport and noted a requirement for a “threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence”.  In this case, Judge Lynch ruled that the defendant “has not made the requisite threshold showing”, stating that the defendant “is not entitled to delve carte blanche into the nonpublic sections of Plaintiffs’ social networking accounts”.

Therefore, while granting the defendant’s request that the “Plaintiffs must provide a list of all the social networking sites to which they belong”, the remainder of the defendant’s request for social media information was denied, subject to their “right to renew the motion in the event it can make the threshold showing of relevance discussed above”.

So, what do you think?  Should the request 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.

First Case for Technology Assisted Review to be Completed – eDiscovery Trends

As reported in Law Technology News by Evan Koblentz, it appears we have our first case in which predictive coding has been completed.

Last April, as reported in this blog, in Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, Virginia State Circuit Court Judge James H. Chamblin ordered that the defendants can use predictive coding for discovery in this case, despite the plaintiff’s objections that the technology is not as effective as human review.  The order was issued after the defendants issued a motion requesting either that predictive coding technology be allowed in the case or that the plaintiffs pay any additional costs associated with traditional review.  The defendant had an 8 terabyte data set that they were hoping to reduce to a few hundred gigabytes through advanced culling techniques.

According to the Law Technology News article, defense counsel at Schnader Harrison Segal & Lewis, and also at Baxter, Baker, Sidle, Conn & Jones, used OrcaTec’s Document Decisioning Suite technology and that OrcaTec will announce that the process is finished after plaintiff’s counsel at Jones Day did not object to the results by a recent deadline.

As reported in the article, eDiscovery analyst David Horrigan of 451 Research, expressed his surprise that Global Aerospace didn’t head in a different direction and wondered aloud why plaintiff’s counsel did not object to the results after initially objecting to the technology itself.

“It’s disappointing this issue has apparently been resolved on [plaintiff’s] missed procedural deadline,” he said. “Not unlike the predictive coding vs. keyword search debate in Kleen Products being postponed, if this court deadline has really been missed, we’ve lost an opportunity for a court ruling on predictive coding being decided on the merits.”

For more about what predictive coding is and its effectiveness, here are a couple of previous posts on the subject.  For other cases where predictive coding and other technology assisted review mechanisms have been discussed, check out this year end case summary from last week.

So, what do you think?  Does this pave the way for more cases to use technology assisted review?  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.

2012 eDiscovery Year in Review: eDiscovery Case Law, Part 4

As we noted the past three days, eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to admissibility and the duty to preserve and produce electronically stored information (ESI).  Today, let’s take a look back at cases related to sanctions and spoliation.

We grouped those cases into common subject themes and have reviewed them over the past few posts, ending today.  Perhaps you missed some of these?  Now is your chance to catch up!

SPOLIATION / SANCTIONS

All hail the returning champion!  I’ll bet that you won’t be surprised that, once again, the topic with the largest number of case law decisions related to eDiscovery are those related to sanctions and spoliation issues.  Of the 62 cases we covered this past year, almost a third of them (20 total cases) related to sanctions and spoliation issues.  We found them in a variety of sources, even The Hollywood Reporter!  Here they are.  And, as you’ll see by the first case (and a few others), sanctions requested are not always granted – at least not yet.

Sanctions for Violating Motion to Compel Production? Not Yet.  In Fidelity National Title Insurance Co. v. Captiva Lake Investments, LLC, where a party’s “conduct [did not] rise[ ] to the level of a willful violation of the order compelling production” because it was continually working toward the proper production of documents requested by its adversary, a court concluded that the adversary’s motion for sanctions was premature.

“Rap Weasel” Forced to Honor $1 Million Reward Offered via YouTube.  It isn’t every day that eDiscoveryDaily has reason to reference The Hollywood Reporter in a story about eDiscovery case law, but even celebrities have eDiscovery preservation obligations during litigation. In Augstein v. Leslie, New York District Judge Harold Baer imposed an adverse inference sanction against hip hop and R&B artist Ryan Leslie for “negligent destruction” of a hard drive returned to him by the plaintiff after a $1 million reward was offered via YouTube. On November 28, a jury ordered him to pay the $1 million reward to the plaintiff.

Plaintiff Hammered with Case Dismissal for “Egregious” Discovery Violations.  Apparently, destroying your first computer with a sledgehammer and using Evidence Eliminator and CCleaner on your second computer (when you have a duty to preserve both) are not considered to be best practices for preservation. Who knew? 😉

Rambus’ “Shred Days” Result in Sanctions Yet Again.  In Hynix Semiconductor Inc. v. Rambus, Inc., California District Judge Ronald Whyte used his discretion to fashion an appropriate fact-specific sanctions award after it found a party willfully destroyed evidence despite reasonably foreseeable litigation, it destroyed such evidence in bad faith, and the opposing party suffered prejudice.

Defendant Ordered to Retain Outside Vendor, Monetary Sanction Awarded.  In Carrillo v. Schneider Logistics, Inc., California Magistrate Judge David Bristow ordered the defendant to “retain, at its expense, an outside vendor, to be jointly selected by the parties, to collect electronically stored information and email correspondence”. The defendant was ordered to produce all surveillance videotapes responsive to plaintiffs’ discovery requests and monetary sanctions were awarded for plaintiff’s attorney fees and costs incurred as a result of the defendant’s discovery violations.

Government Document Productions Can Be Like Water Torture.  In Botell v. United States, Magistrate Judge Gregory Hollows noted that the US Government’s “document production performance in these proceedings has been akin to a drop-by-drop water torture” and ordered a preclusion order prohibiting the US Government “from presenting evidence in its case that had been requested by plaintiffs in the Requests for Production, but which has not been produced” as of the date of the order. The US was also still required to produce the documents, whether they planned to use them or not. Judge Hollows also noted that the “Plaintiff has not waived any motion to seek further sanctions regarding non-production of documents, or spoliation of documents.”

Defendant Appeals Sanctions, Only to See Sanction Amount Raised on Appeal.  In Multifeeder Tech. Inc. v. British Confectionery Co. Ltd., the defendant had been previously sanctioned $500,000 ($475,000 to the plaintiff and $25,000 to the court) and held in contempt of court by the magistrate judge for spoliation, who also recommended an adverse inference instruction be issued at trial. The defendant appealed to the district court, where Minnesota District Judge John Tunheim increased the award to the plaintiff to $600,000. Oops!

eDiscovery Sanctions Can Happen in Police Brutality Cases Too.  As reported in the Seattle Times, Pierce County (Washington) Superior Court Judge Stephanie Arend issued a $300,000 sanction against King County for failure to produce key documents illustrating the previous troubling behavior of a sheriff deputy who tackled Christopher Sean Harris and left him permanently brain-damaged. Judge Arend also indicated that the county would be liable for attorneys’ fees and possibly compensatory damages for the Harris family. This after King County had settled with the Harris family for $10 million in January 2011 during a civil trial in King County Superior Court.

When is a Billion Dollars Not Enough?  When it’s Apple v. Samsung, of course! According to the Huffington Post, Apple Inc. requested a court order for a permanent U.S. sales ban on Samsung Electronics products found to have violated its patents along with additional damages of $707 million on top of the $1.05 billion dollar verdict won by Apple last month, already one of the largest intellectual-property awards on record.

No Sanctions For Spoliation With No Bad Faith.  In Sherman v. Rinchem Co., the plaintiff in a defamation case against his former employer appealed the district court’s denial of both his summary judgment motion and request for an adverse inference jury instruction. The district court had decided the case under Minnesota law, which “provides that ‘even when a breach of the duty to preserve evidence is not done in bad faith, the district court must attempt to remedy any prejudice that occurs as a result of the destruction of the evidence.’” In contrast, as the Eighth Circuit pointed out, in this case where the parties had diversity, and a question remained as to whether state or federal spoliation laws were applicable, federal law requires “a finding of intentional destruction indicating a desire to suppress the truth” in order to impose sanctions.

Pension Committee Precedent Takes One on the Chin.  In Chin v. Port Authority of New York and New Jersey, the Second Circuit Court of Appeals ruled it was within a district court’s discretion not to impose sanctions against a party for its failure to institute a litigation hold.

More Sanctions for Fry’s Electronics.  In E.E.O.C. v Fry’s Electronics, Inc., Washington District Judge Robert S. Lasnik ordered several sanctions against the defendant in this sexual harassment case (including ordering the defendant to pay $100,000 in monetary sanctions and ordering that certain evidence be considered presumptively admissible at trial), but stopped short of entering a default judgment against the defendant. This ruling came after having previously ordered sanctions against the defendant less than two months earlier.

No Sanctions When You Can’t Prove Evidence Was Destroyed.  In Omogbehin v. Cino, the plaintiff claimed that the District Court erred in denying his motion for spoliation sanctions and appealed to the US Third Circuit Court of Appeals, but lost as the appellate court upheld the rulings by the district judge and magistrate judge.

“Naked” Assertions of Spoliation Are Not Enough to Grant Spoliation Claims.  In Grabenstein v. Arrow Electronics, Inc., Colorado Magistrate Judge Kristen L. Mix denied the plaintiff’s motion for sanctions, finding that their claims of spoliation were based on “naked” assertions that relevant eMails must exist even though the plaintiff could not demonstrate that such other eMails do or did exist. The motion was also denied because the plaintiff could not establish when the defendant had deleted certain eMail messages, thereby failing to prove claims that the defendant violated its duty to preserve electronic evidence. Judge Mix noted that sanctions are not justified when documents are destroyed in good faith pursuant to a reasonable records-retention policy, if that’s prior to the duty to preserve such documents.

Spoliation of Data Can Lead to Your Case Being Dismissed.  In In 915 Broadway Associates LLC v. Paul, Hastings, Janofsky & Walker, LLP, the New York Supreme Court imposed the severest of sanctions against the plaintiffs for spoliation of evidence – dismissal of their $20 million case.

Better Late Than Never? Not With Discovery.  In Techsavies, LLC v. WFDA Mktg., Inc., Magistrate Judge Bernard Zimmerman of the United States District Court for the District of Northern California sanctioned the defendant for repeated failures to produce responsive documents in a timely manner because of their failure to identify relevant data sources in preparing its initial disclosures.

The Zubulake Rules of Civil Procedure.  As noted in Law Technology News, the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, in two case rulings within a month’s time, one of which resulted in sanctions against one of the parties for spoliation of data.

eDiscovery Violations Leave Delta Holding the Bag.  In the case In re Delta/AirTran Baggage Fee Antitrust Litig., U.S. District Judge Timothy Batten ordered Delta to pay plaintiff attorney’s fees and costs for eDiscovery issues in consolidated antitrust cases claiming Delta and AirTran Holdings, Inc. conspired to charge customers $15 to check their first bag. Noting that there was a “huge hole” in Delta’s eDiscovery process, Judge Batten reopened discovery based on defendants’ untimely production of records and indications that there was overwriting of backup tapes, inconsistencies in deposition testimony and documents, and neglect in searching and producing documents from hard drives.

Burn Your Computer and the Court Will Burn You.  In Evans v. Mobile Cnty. Health Dept., Alabama Magistrate Judge William Cassady granted a motion for sanctions, including an adverse inference instruction, where the plaintiff had burned and destroyed her computer that she used during the time she claimed she was harassed.

Appeals Court Decides Spoliation Finding For Not Producing Originals is Bull.  In Bull v. UPS Inc., the Third Circuit court conceded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information”. However, it found that in this case, the District Court erred in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.

So, what do you think?  Did you miss any of these?  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.