eDiscoveryDaily Archives

eDiscovery Trends: Sampling within eDiscovery Software

January 17, 2012

Those of you who have been following this blog since early last year may remember that we published a three part series regarding testing your eDiscovery searches using sampling (as part of the “STARR” approach discussed on this blog about a year ago). We discussed how to determine the appropriate sample size to test your search, using a sample size calculator (freely available on the web). We also discussed how to make sure the sample size is randomly selected (again referencing a site freely available on the web for generating the random set). We even walked through an example of how you can test and refine a search using sampling, saving tens of thousands in review costs with defensible results.

Instead of having to go to all of these external sites to manually size and generate your random sample set, it’s even better when the eDiscovery ECA or review software you’re using handles that process for you. The latest version of FirstPass®, powered by Venio FPR™, does exactly that. Version 3.5.1.2 of FirstPass has introduced a sampling module that provides a wizard that walks you through the process of creating a sample set to review to test your searches. What could be easier?

The wizard begins by providing a dialog to enable the user to select the sampling population. You can choose from tagged documents from one or more tags, documents in saved search results, documents from one or more selected custodians or all documents in the database. When choosing tags, you can choose ANY of the selected tags, ALL of the selected tags, or even choose documents NOT in the selected tags (for example, enabling you to test the documents not tagged as responsive to confirm that responsive documents weren’t missed in your search).

You can then specify your confidence level (e.g., 95% confidence level) and confidence interval (a.k.a., margin of error – e.g., 4%) using slider bars. As you slide the bars to the desired level, the application shows you how that will affect the size of the sample to be retrieved. You can then name the sample and describe its purpose, then identify whether you want to view the sample set immediately, tag it or place it into a folder. Once you’ve identified the preferred option for handling your sample set, the wizard gives you a summary form for displaying your choices. Once you click the Finish button, it creates the sample and gives you a form to show you what it did. Then, if you chose to view the sample set immediately, it will display the sample set (if not, you can then retrieve the tag or folder containing your sample set).

By managing this process within the software, it saves considerable time outside the application having to identify the sample size and create a randomly selected set of IDs, then go back into the application to retrieve and tag those items as belonging to the sample set (which is how I used to do it). The end result is simplified and streamlined.

So, what do you think? Is sample set generation within the ECA or review tool a useful feature? Please share any comments you might have or if you’d like to know more about a particular topic.

Full disclosure: I work for CloudNine Discovery, which provides SaaS-based eDiscovery review applications FirstPass® (for first pass review) and OnDemand® (for linear review and production).

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 Case Law: Via Rule 45 Subpoena, Plaintiff Allowed to Search Non-Party Personal Hard Drive

January 16, 2012

A party can subpoena a nonparty to provide a personal computer for the forensic review of electronically stored information (ESI) under Rule 45 of the Federal Rules of Civil Procedure.

In Wood v. Town of Warsaw, N.C., No. 7:10-CV-00219-D, (E.D.N.C. Dec. 22, 2011), a former police chief alleged his former employer unfairly terminated him because of his age under the Age Discrimination in Employment Act. During discovery, the plaintiff sent a non-party subpoena to the former town hall manager, who the plaintiff claimed was responsible for his termination. In the subpoena, the plaintiff asked that the former town manager make his personal computer available for a search by a forensic expert using agreed-upon search terms. He also offered to pay for the cost of the search, excluding any privilege review that the town manager wanted to conduct.

The town manager objected to the subpoena and attempted to modify it, claiming the search would be expensive, would be time-consuming, and would invade his privacy. He also claimed he did not use his personal computer for work. He offered to search the computer himself and provide any documents that were responsive to the plaintiff’s requests in the subpoena.

The court reviewed Rule 45 of the Federal Rules of Civil Procedure, which required it to balance three factors in deciding whether to modify or quash a subpoena: (1) the relevance of the information sought, (2) the plaintiff’s need for the information, and (3) the potential hardship to the non-party. In doing so, it concluded that the plaintiff’s narrow request for “non-privileged documents identified by an electronic search for key words related to the claims and defenses asserted by the parties” was reasonable. The court also noted that “in this age of smart phones and telecommuting, it is increasingly common for work to be conducted outside of the office and through the use of personal electronic devices.” Therefore, it was reasonable to expect to find relevant ESI on the town manager’s computer. Finally, the fact that the plaintiff assumed all of the costs except the privilege review minimized the burden on the town manager.

The court also noted that the subpoena’s requests were limited to tangible documents, not including ESI, and would thus not “encompass the information sought by the request to search [the town manager’s] hard drive.”

Therefore, it ruled that the subpoena was proper but modified it to clarify that the plaintiff was not entitled to the complete contents of the hard drive—just to those responsive to the search terms that were neither privileged nor confidential.

So, what do you think? Should the search have been allowed? Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).

eDiscovery Trends: The Sedona Conference International Principles

January 13, 2012

One of our eDiscovery predictions for 2012 was that there would be a continued focus on International eDiscovery and that was also a prediction of three of the other sets of eDiscovery predictions we evaluated. Multinational companies with operations in the United States are often subject both to the US civil procedure discovery rules as well as the privacy laws of the European Union and other countries where they operate. Trying to comply with both sets of rules and laws can be difficult when those rules and laws conflict.

To attempt to address those conflicts, Working Group 6 of The Sedona Conference (TSC) has drafted the 2011 Public Comment Version of The Sedona Conference® International Principles on Discovery, Disclosure and Data Protection (“International Principles”), downloadable here. This is the European Union Edition, which as noted in the Foreward, states “[a]lthough focused principally on the relationship between U.S. preservation and discovery obligations and the EU Data Protection Directive . . . is intended to apply broadly wherever Data Protection Laws, regardless of national origin, conflict with U.S. preservation and discovery obligations”.

As with other TSC “Principles” documents, there are a collection of principles around which the document is built which are listed at the beginning of the document and then discussed within it. Here are the six principles:

With regard to data that is subject to preservation, disclosure, or discovery, courts and parties should demonstrate due respect to the Data Protection Laws of any foreign sovereign and the interests of any person who is subject to or benefits from such laws.
Where full compliance with both Data Protection Laws and preservation, disclosure, and discovery obligations presents a conflict, a party’s conduct should be judged by a court or data protection authority under a standard of good faith and reasonableness.
Preservation or discovery of Protected Data should be limited in scope to that which is relevant and necessary to support any party’s claim or defense in order to minimize conflicts of law and impact on the Data Subject.
Where a conflict exists between Data Protection Laws and preservation, disclosure, or discovery obligations, a stipulation or court order should be employed to protect Protected Data and minimize the conflict.
A Data Controller subject to preservation, disclosure, or discovery obligations should be prepared to demonstrate that data protection obligations have been addressed and that appropriate data protection safeguards have been instituted.
Data Controllers should retain Protected Data only as long as necessary to satisfy legal or business needs. While a legal action is pending or remains reasonably anticipated, Data Controllers should preserve relevant information, including relevant Protected Data, with appropriate data safeguards.

The appendices include a 15 page Model Protected Data Protective Order and a Cross-Border Data Safeguarding Process + Transfer Protocol, which is an ease-of-reference guide identifying common techniques for achieving best possible legal compliance with conflicting U.S. eDiscovery rules and Data Protection laws when processing and transferring foreign data for U.S. litigation.

As noted in the document, “[o]ther editions of the International Principles are planned for publication by Working Group 6 that will focus on sovereign countries or regions other than the EU and the intersection of their data protection laws and U.S. preservation and discovery requirements.” So, there is more to come!

To submit a public comment, you can download a public comment form here, complete it and fax (yes, I said fax) it to The Sedona Conference® at 928-284-4240. You can also email a general comment to them at tsc@sedona.net.

So, what do you think? Do the International Principles provide significant guidance for addressing international discovery issues? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Our 2012 Predictions

January 12, 2012

Yesterday, we evaluated what others are saying and noted popular eDiscovery prediction trends for the coming year. It’s interesting to identify common trends among the prognosticators and also the unique predictions as well.

But we promised our own predictions for today, so here they are. One of the nice things about writing and editing a daily eDiscovery blog is that it forces you to stay abreast of what’s going on in the industry. Based on the numerous stories we’ve read (many of which we’ve also written about), and in David Letterman “Top 10” fashion, here are our eDiscovery predictions for 2012:

Still More ESI in the Cloud: Frankly, this is like predicting “the Sun will be hot in 2012”. Given the predictions in cloud growth by Forrester and Gartner, it seems inevitable that organizations will continue to migrate more data and applications to “the cloud”. Even if some organizations continue to resist the cloud movement, those organizations still have to address the continued growth in usage of social media sites in business (which, last I checked, are based in the cloud). It’s inevitable.
More eDiscovery Technology in the Cloud As Well: We will continue to see more cloud offerings for eDiscovery technology, ranging from information governance to preservation and collection to review and production. With the need for corporations to share potentially responsive ESI with one or more outside counsel firms, experts and even opposing counsel, cloud based Software-as-a-Service (SaaS) applications are a logical choice for sharing that information effortlessly without having to buy software, hardware and provide infrastructure to do so. Every year at LegalTech, there seems to be a few more eDiscovery cloud providers and this year should be no different.
Self-Service in the Cloud: So, organizations are seeing the benefits of the cloud not only for storing ESI, but also managing it during Discovery. It’s the cost effective alternative. But, organizations are demanding the control of a desktop application within their eDiscovery applications. The ability to load your own data, add your own users and maintain their rights, create your own data fields are just a few of the capabilities that organizations expect to be able to do themselves. And, more providers are responding to those needs. That trend will continue this year.
Technology Assisted Review: This was the most popular prediction among the pundits we reviewed. The amount of data in the world continues to explode, as there were 988 exabytes in the whole world as of 2010 and Cisco predicts that IP traffic over data networks will reach 4.8 zettabytes (each zettabyte is 1,000 exabytes) by 2015. More than five times the data in five years. Even in the smaller cases, there’s simply too much data to not use technology to get through it all. Whether it’s predictive coding, conceptual clustering or some other technology, it’s required to enable attorneys manage the review more effectively and efficiently.
Greater Adoption of eDiscovery Technology for Smaller Cases: As each gigabyte of data is between 50,000 and 100,000 pages, a “small” case of 4 GB (or two max size PST files in Outlook® 2003) can still be 300,000 pages or more. As “small” cases are no longer that small, attorneys are forced to embrace eDiscovery technology for the smaller cases as well. And, eDiscovery providers are taking note.
Continued Focus on International eDiscovery: So, cases are larger and there’s more data in the cloud, which leads to more cases where Discovery of ESI internationally becomes an issue. The Sedona Conference® just issued in December the Public Comment Version of The Sedona Conference® International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation, illustrating how important an issue this is becoming for eDiscovery.
Prevailing Parties Awarded eDiscovery Costs: Shifting to the courtroom, we have started to see more cases where the prevailing party is awarded their eDiscovery costs as part of their award. As organizations have pushed for more proportionality in the Discovery process, courts have taken it upon themselves to impose that proportionality through taxing the “losers” for reimbursement of costs, causing prevailing defendants to say: “Sue me and lose? Pay my costs!”.
Continued Efforts and Progress on Rules Changes: Speaking of proportionality, there will be continued efforts and progress on changes to the Federal Rules of Civil Procedure as organizations push for clarity on preservation and other obligations to attempt to bring spiraling eDiscovery costs under control. It will take time, but progress will be made toward that goal this year.
Greater Price/Cost Control Pressure on eDiscovery Services: In the meantime, while waiting for legislative relief, organizations will expect the cost for eDiscovery services to be more affordable and predictable. In order to accommodate larger amounts of data, eDiscovery providers will need to offer simplified and attractive pricing alternatives.
Big Player Consolidation Continues, But Plenty of Smaller Players Available: In 2011, we saw HP acquire Autonomy and Symantec acquire Clearwell, continuing a trend of acquisitions of the “big players” in the industry. This trend will continue, but there is still plenty of room for the “little guy” as smaller providers have been pooling resources to compete, creating an interesting dichotomy in the industry of few big and many small providers in eDiscovery.

So, what do you think? Care to offer your own predictions? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: 2012 Predictions – By The Numbers

January 11, 2012

With a nod to Nick Bakay, “It’s all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year. I know what you’re thinking – “oh no, not another set of eDiscovery predictions!” However, at eDiscovery Daily, we do things a little bit differently. We like to take a look at other predictions and see if we can spot some common trends among those before offering some of our own (consider it the ultimate “cheat sheet”). So, as I did last year, I went “googling” for 2012 eDiscovery predictions, and organized the predictions into common themes. I found eDiscovery predictions here, here, here, here, here, here and Applied Discovery. Oh, and also here, here and here. Ten sets of predictions in all! Whew!

A couple of quick comments: 1) Not all of these are from the original sources, but the links above attribute the original sources when they are re-prints. If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment. 2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out. Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

Technology Assisted Review: Nine out of ten “prognosticators” (up from 2 out of 7 last year) predicted a greater emphasis/adoption of technological approaches. While some equate technology assisted review with predictive coding, other technology approaches such as conceptual clustering are also increasing in popularity. Clearly, as the amount of data associated with the typical litigation rises dramatically, technology is playing a greater role to enable attorneys manage the review more effectively and efficiently.
eDiscovery Best Practices Combining People and Technology: Seven out of ten “augurs” also had predictions related to various themes associated with eDiscovery best practices, especially processes that combine people and technology. Some have categorized it as a “maturation” of the eDiscovery process, with corporations becoming smarter about eDiscovery and integrating it into core business practices. We’ve had numerous posts regarding to eDiscovery best practices in the past year, click here for a selection of them.
Social Media Discovery: Six “pundits” forecasted a continued growth in sources and issues related to social media discovery. Bet you didn’t see that one coming! For a look back at cases from 2011 dealing with social media issues, click here.
Information Governance: Five “soothsayers” presaged various themes related to the promotion of information governance practices and programs, ranging from a simple “no more data hoarding” to an “emergence of Information Management platforms”. For our posts related to Information Governance and management issues, click here.
Cloud Computing: Five “mediums” (but are they happy mediums?) predict that ESI and eDiscovery will continue to move to the cloud. Frankly, given the predictions in cloud growth by Forrester and Gartner, I’m surprised that there were only five predictions. Perhaps predicting growth of the cloud has become “old hat”.
Focus on eDiscovery Rules / Court Guidance: Four “prophets” (yes, I still have my thesaurus!) expect courts to provide greater guidance on eDiscovery best practices in the coming year via a combination of case law and pilot programs/model orders to establish expectations up front.
Complex Data Collection: Four “psychics” also predicted that data collection will continue to become more complex as data sources abound, the custodian-based collection model comes under stress and self-collection gives way to more automated techniques.

The “others receiving votes” category (three predicting each of these) included cost shifting and increased awards of eDiscovery costs to the prevailing party in litigation, flexible eDiscovery pricing and predictable or reduced costs, continued focus on international discovery and continued debate on potential new eDiscovery rules. Two each predicted continued consolidation of eDiscovery providers, de-emphasis on use of backup tapes, de-emphasis on use of eMail, multi-matter eDiscovery management (to leverage knowledge gained in previous cases), risk assessment /statistical analysis and more single platform solutions. And, one predicted more action on eDiscovery certifications.

Some interesting predictions. Tune in tomorrow for ours!

So, what do you think? Care to offer your own “hunches” from your crystal ball? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Defendants Not Required to Share Costs for Plaintiff’s Third Party Request

January 10, 2012

After recapping 2011 case law over four days last week, it seems appropriate to move on to new cases, starting with a couple of stragglers from last year.

In Last Atlantis Capital LLC v. AGS Specialist Partners, No. 04 C 0397, 2011 WL 6097769 (N.D. Ill. Dec. 5, 2011), the plaintiffs proposed that the defendants share in the cost of obtaining data that Plaintiffs subpoenaed from third parties. The court noted that all parties “involved herein are aware that the linchpin of this entire matter” was to obtain this audit trail data for analysis. The court had also previously suggested (at a September status conference) “in an effort to accelerate this protracted litigation” that it would be “reasonable” for Defendants to aid in half the costs. Nonetheless, the court rejected the plaintiff’s proposal for cost-sharing in this case, rejecting the plaintiff arguments for doing so. Here are the arguments and the court’s rejection of each:

Court's comments during the September Status Conference as evidence that costs should be shared: While the court admitted to suggesting to Defendants that Plaintiffs' proposal of cost sharing sounded “reasonable”, those comments “were made to encourage movement within this stagnant litigation”. Once the Court was able to further research the precedent surrounding cost-sharing, it found no basis for accepting the Plaintiffs' cost-sharing proposal.
Plaintiffs' reliance upon the Sedona Conference Commentary on Non–Party Production & Rule 45 Subpoenas, 9 Sedona Conf. J. 197 (2008): The court felt that this Sedona Conference Commentary was “almost entirely irrelevant” to the matter at hand as it “is largely concerned with the burden being placed on a non-party to produce information”. Despite the fact that the Commentary “includes a suggestion that parties meet and confer to ‘address’ cost-sharing, amongst other things, in their initial Rule 26(f) conference”, it did not dictate such an arrangement; rather, the Commentary declares that “[c]ost-shifting or cost-sharing are inconsistent with the so-called ‘American Rule’ that each party bears its own litigation costs”.
Other Court Opinions: The plaintiffs cited several court opinions – such as Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 573 (N.D.Ill.2004) and Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 320 (S.D.N.Y.2003) – to attempt to bolster their argument. However, the court noted that all of the court opinions “miss the mark as they each address the issue of cost-sharing amongst the requesting party and the producing party, not between a requesting party and a non-requesting, non-producing opponent in the underlying litigation, such as with Defendants.”

The court acknowledged that the defendants had “substantially more resources,” but noted that was a fact it could not consider. Therefore, the court ruled that “it would not force Defendants to pay for the evidence that Plaintiffs need in order to prove their case against Defendants” and the plaintiffs’ proposal for cost-shifting was denied.

So, what do you think? Should the defendant have been required to share in the costs? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: ARMA International and EDRM Jointly Release Information Governance White Paper

January 9, 2012

A few months ago, the Electronic Discovery Reference Model (EDRM) and ARMA International announced that they would be collaborating on information governance guidelines for eDiscovery. It only took them a little over three months to release their first work product.

On December 20 of last year, ARMA and EDRM announced the publication of a jointly developed white paper entitled, How the Information Governance Reference Model (IGRM) Complements ARMA International’s Generally Accepted Recordkeeping Principles (GARP). The press release announcing the release of the white paper can be found on the EDRM site here. The web version of the paper is located here and the PDF version can be downloaded here.

The core of the paper is to relate the EDRM Information Governance Reference Model (IGRM) to ARMA’s GARP® principles. There are eight GARP principles, as follows:

Accountability
Transparency
Integrity
Protection
Compliance
Availability
Retention
Disposition

The white paper provides a chart for assigning ownership to each business unit for each GARP principle and describes the Maturity Model with five levels of effective Information Governance, ranging from Level 1 (Sub-standard) to Level 5 (Transformational). Transformational describes “an organization that has integrated information governance into its overall corporate infrastructure and business processes to such an extent that compliance with the program requirements is routine”. Based on the CGOC Information Governance Benchmark Report from a little over a year ago, most organizations have quite a bit of maturing still to do.

The white paper then proceeds to describe each of the eight principles “According to GARP” at Level 5 Transformational Maturity. Where’s Robin Williams when you need him? The white paper finishes with several conclusions noting that “the IGRM complements the metrics defined by ARMA International’s Information Governance Maturity Model”.

This white paper provides a great overview of both the IGRM and ARMA GARP principles and is well worth reading to develop an understanding of both models. It will be interesting to see how the EDRM and ARMA joint effort proceeds from here to help organizations achieve a higher level of “maturity” when it comes to information governance.

So, what do you think? Have you read the white paper yet? Do you think the EDRM/ARMA collaboration will lead to greater information governance within organizations? As always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Year in Review: eDiscovery Case Law, Part 4

January 6, 2012

As we noted the past three days, eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases! Yesterday, we looked back at cases related to discovery of social media. One final set of cases to review.

We grouped those cases into common subject themes and have been reviewing them over the next few posts. Perhaps you missed some of these? Now is your chance to catch up!

SANCTIONS / SPOLIATION

Behold the king! I’ll bet that you won’t be surprised that the topic with the largest number of case law decisions (by far!) related to eDiscovery are those related to sanctions and spoliation issues. Late in 2010, eDiscovery Daily reported on a Duke Law Journal article that indicated back then that sanctions were at an all-time high and the number of cases with sanction awards remains high.

Of the 50 cases we covered this past year, over a third of them (17 total cases) related to sanctions and spoliation issues. Here they are. And, as you’ll see by the first case (and a few others), sanctions requested are not always granted. Then again, sometimes both sides get sanctioned!

No Sanctions for Scrubbing Computers Assumed to be Imaged. In this case, data relevant to the case was lost when computers were scrubbed and sold by the defendants with the permission of the court-appointed Receiver, based on the Receiver’s mistaken belief that all relevant computers had been imaged and instruction to the defendants to scrub all computers before selling. Because of the loss of this data, defendants filed a motion for spoliation sanctions for what they described as “the FTC’s bad-faith destruction of Defendants’ computer systems.” Was the motion granted?

Spoliate Evidence, Don’t Go to Jail, but Pay a Million Dollars. Defendant Mark Pappas, President of Creative Pipe, Inc., was ordered by Magistrate Judge Paul W. Grimm to "be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney's fees and costs". However, ruling on the defendants’ appeal, District Court Judge Marvin J. Garbis declined to adopt the order regarding incarceration, stating it was not "appropriate to Order Defendant Pappas incarcerated for future possible failure to comply with his obligation to make payment…". So, how much was he ordered to pay? Now we know. That decision was affirmed here.

Deliberately Produce Wrong Cell Phone, Get Sanctioned. In this case, the plaintiff originally resisted production of a laptop and a cell phone for examination, but ultimately produced a laptop and cell phone. The problem with that production? After examination, it was determined that neither device was in use during the relevant time period and the actual devices used during that time frame were no longer in plaintiff’s possession. When requested to explain as to why this was not disclosed initially, the plaintiff’s attorney explained that he was torn between his “competing duties” of protecting his client and candor to the court. Really?

Destroy Data, Pay $1 Million, Lose Case. A federal judge in Chicago has levied sanctions against Rosenthal Collins Group LLC and granted a default judgment to the defendant for misconduct in a patent infringement case, also ordering the Chicago-based futures broker's counsel to pay "the costs and attorneys fees incurred in litigating this motion" where plaintiff’s agent modified metadata related to relevant source code and wiped several relevant disks and devices prior to their production and where the court found counsel participated in "presenting misleading, false information, materially altered evidence and willful non-compliance with the Court’s orders."

Conclusion of Case Does Not Preclude Later Sanctions. In this products liability case that had been settled a year earlier, the plaintiff sought to re-open the case and requested sanctions alleging the defendant systematically destroyed evidence, failed to produce relevant documents and committed other discovery violations in bad faith. As Yogi Berra would say, “It ain’t over ‘til it’s over”.

Written Litigation Hold Notice Not Required. The Pension Committee case was one of the most important cases of 2010 (or any year, for that matter). So, perhaps it’s not surprising that it is starting to become frequently cited by those looking for sanction for failure to issue a written litigation hold. In this case, the defendant cited Pension Committee, arguing that plaintiff’s failure to issue a written litigation hold and subsequent failure to produce three allegedly relevant emails allowed for a presumption that relevant evidence was lost, thereby warranting spoliation sanctions. Was the court’s ruling consistent with Pension Committee?

No Sanctions Ordered for Failure to Preserve Backups. A sanctions motion has been dismissed by the U.S. District Court of Texas in a recent case involving electronic backups and email records, on the grounds that there was no duty to preserve backup tapes and no bad faith in overwriting records.

Discovery Violations Result in Sanctions Against Plaintiff and Counsel. Both the plaintiff and plaintiff's counsel have been ordered to pay sanctions for discovery abuses in a lawsuit in Washington court that was dismissed with prejudice on June 8, 2011.

Meet and Confer is Too Late for Preservation Hold. A US District court in Indiana ruled on June 28 in favor of a motion for an Order to Secure Evidence in an employment discrimination lawsuit. The defendant had given the plaintiff reason to believe that emails and other relevant documents might be destroyed prior to Rule 26(f) meeting between the parties or Rule 16(b) discovery conference with the court. As a result, the plaintiff formally requested a litigation hold on all potentially relevant documents, which was approved by US Magistrate Judge Andrew Rodovich.

Court Orders Sanctions in Response to "Callous and Careless Attitude" of Defendant in Discovery. A Special Master determined that multiple discovery failures on the part of the defendant in an indemnity action were due to discovery procedures "wholly devoid of competence, yet only once motivated by guile". Accordingly, the court ordered sanctions against the defendant and also ordered the defendant to pay all costs associated with its discovery failures, including plaintiff's attorney fees and costs.

Court Upholds Sanctions for Intentional Spoliation of Unallocated Space Data. The Supreme Court of Delaware recently upheld the sanctions against the defendant for wiping the unallocated space on his company’s computer system, despite a court order prohibiting such destruction. In this case, Arie Genger, CEO of Trans-Resources, Inc., argued that sanctions against him were unreasonable and made a motion for the court to overturn its previous decision regarding spoliation of discovery materials. Instead, after due process, the court upheld its earlier decision.

Sanctions for Spoliation, Even When Much of the Data Was Restored. A Virginia court recently ordered sanctions against the defendant in a case of deliberate spoliation of electronic discovery documents. In this case, the defendant was found to have committed spoliation "in bad faith" in a manner that constituted a "violation of duty… to the Court and the judicial process."

"Untimely" Motion for Sanctions for Spoliation Denied. A recent ruling by the US District Court of Tennessee has denied a motion for sanctions for spoliation on the grounds that the motion was "untimely." In this case, the plaintiff argued that the defendants' admitted failure to preserve evidence "warrants a harsh penalty," but the court found in favor of the defense that the motion was untimely.

Defendant Sanctioned for Abandonment and Sale of Server; Defendants' Counsel Unaware of Spoliation. An Illinois District Court ordered heavy sanctions against the defense for spoliation "willfully and in bad faith" of documents stored on a server, in a case revolving around damages sought for breach of loan agreements.

Facebook Spoliation Significantly Mitigates Plaintiff’s Win. In this case with both social media and spoliation issues, monetary sanctions were ordered against the plaintiff and his counsel for significant discovery violations. Those violations included intentional deletion of pictures on the plaintiff’s Facebook page as instructed by his Counsel as well as subsequent efforts to cover those instructions up, among others.

Lilly Fails to Meet its eDiscovery Burden, Sanctions Ordered. In this case, a Tennessee District court found that “Lilly failed to take reasonable steps to preserve, search for, and collect potentially relevant information, particularly electronic data, after its duty to preserve evidence was triggered by being served with the complaint.” As a result, the court ordered sanctions against Lilly. How far did the court go with those sanctions?

Court Grants Adverse Inference Sanctions Against BOTH Sides. Have you ever seen the video where two boxers knock each other out at the same time? That’s similar to what happened in this case. In this case, the court addressed the parties’ cross motions for sanctions, ordering an adverse inference for the defendants’ failure to preserve relevant video surveillance footage, as well as an adverse inference for the plaintiff’s failure to preserve relevant witness statements. The court also awarded defendants attorneys’ fees and costs and ordered re-deposition of several witnesses at the plaintiff’s expense due to other plaintiff spoliation findings.

Next week, we will begin looking ahead at 2012 and expected eDiscovery trends for the coming year.

So, what do you think? Of all of the cases that we have recapped over the past four days, which case do you think was the most significant? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Year in Review: eDiscovery Case Law, Part 3

January 5, 2012

As we noted the past two days, eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases! Yesterday, we looked back at cases related to privilege & inadvertent disclosures, proportionality and eDiscovery service disputes, including the notable McDermott Will & Emery eDiscovery malpractice case. But, we still have more cases to review. So, let’s keep going!

We grouped those cases into common subject themes and will review them over the next few posts. Perhaps you missed some of these? Now is your chance to catch up!

SOCIAL MEDIA

Social media affects all aspects of litigation from the discovery of data from social media web sites to social media communication during trial. You even have jurors trying to “friend” participants in the case!

Organizations now have to not only plan for preserving, collecting, reviewing and producing conventional data, but also posts, tweets, IMs and more. You know that already. What you may not know is that in nearly every case discussed in eDiscovery Daily this past year where social media data was requested, that request was granted. Oh, and if you have text messages as evidence, you may have to provide corroborating evidence to verify authorship of those text messages for them to be admissible – at least in Pennsylvania. Here are eight cases related to social media issues:

Jurors and Social Media Don’t Mix. Discovery of social media is continuing to increase as a significant issue for organizations to address, with more and more cases addressing the topic. However, when it comes to social media, courts agree on one thing: jurors and social media don’t mix. Courts have consistently rejected attempts by jurors to use social technology to research or to communicate about a case, and have increasingly provided pre-trial and post-closing jury instructions to jurors to dissuade them from engaging in this practice.

Cut and Paste Makes the Cut as Evidence. In this case, the defendant in a criminal case appealed his conviction and raised the issue of whether the prosecution properly authenticated instant messages cut-and-pasted into a Microsoft Word document.

Defendant Can’t Be Plaintiff’s Friend on Facebook. In this case, Bucks County, Pa., Common Pleas Court Judge Albert J. Cepparulo denied the motion from the defendant requesting access to the photos of plaintiff Sara Piccolo posted in her Facebook account, rejecting McMillen v. Hummingbird Speedway, Inc., in which the court ordered the plaintiff to provide his username and password to the defendant’s attorney, as a precedent.

Social Media Posts Deemed Discoverable in Personal Injury Case. A Pennsylvania court recently ordered the plaintiff in a personal injury lawsuit to disclose social media passwords and usernames to the defendant for eDiscovery. Discoverability of social media continues to be a hot topic in eDiscovery, as eDiscovery Daily has noted in summaries of prior cases that reflect varied outcomes for requests to access social media data.

A Pennsylvania Court Conducts Its Own Social Media Relevancy Review. Pennsylvania seems to be taking the lead in setting social media discovery precedents. In this case, a Pennsylvania court agreed to review a plaintiff's Facebook account in order to determine which information is subject to discovery in a case relating to the plaintiff's claim of injury in a motor vehicle accident.

Defendant Ordered to Re-Post Infringing Photograph to Facebook Profile. In this case, a New Jersey court ordered the defendant to re-post a photograph displaying infringing trade dress to his Facebook profile for a brief period of time to allow the plaintiff to print copies, in a case involving trademark infringement.

Court Rules 'Circumstantial Evidence' Must Support Authorship of Text Messages for Admissibility. When are text messages admissible in court? Which text messages qualify as evidence, and what does it take to prove authorship of a text message? A recent opinion from the Pennsylvania Superior Court addresses these very issues in an old yet new way, perhaps setting the precedent for future cases and opening what seems to be a potential Pandora's Box of obstacles to the use of text messages as legal evidence.

Facebook Content Discoverable Yet Again. It seems most, if not all, of the cases these days where discoverability of social media is at issue are being decided by courts in favor of the parties seeking to discover this information. Here’s another example.

Tune in tomorrow for more key cases of 2011 and see the topic that continues to generate more case law related to eDiscovery than any other! Yes, I know I said that yesterday, but I forgot that topic was planned for the big finish tomorrow. Stay tuned!

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.

eDiscovery Year in Review: eDiscovery Case Law, Part 2

January 4, 2012

As we noted yesterday, eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases! Yesterday, we looked back at cases related to eDiscovery cost reimbursement, form of production and international discovery issues. But, there’s many more cases to recap. As Lt. Col Frank Slade would say, “I’m just getting warmed up”. Whoo Ah!

We grouped those cases into common subject themes and will review them over the next few posts. Perhaps you missed some of these? Now is your chance to catch up!

PRIVILEGE / INADVERTENT DISCLOSURES

Decisions regarding what information is privileged and whether privilege is waived when inadvertent disclosures occur is always a hot issue for debate. That was no different in 2011. And, if you receive an inadvertent disclosure and don’t disclose it, you can get kicked off the case. Here are five cases related to privilege and inadvertent disclosures:

Privilege Waived for Produced Servers. Fontainebleau Resort, LLC (FRLLC) produced two servers without conducting any review of the materials, at least one of which had previously been produced to other banks involved in the underlying litigation. Would they be required to waive privilege on those servers?

When is Attorney-Client Communication NOT Privileged? One answer: When it’s from your work email account, and your employer has a written policy that company email is not private and subject to audit. Oh, and you’re suing your employer.

Read Inadvertent Email, Get Disqualified from Case. Lesson of the day: When you receive an inadvertently sent privileged email, read it and don’t disclose receipt of it, you can get kicked off the case. In this case, the court disqualified defendant's in-house and outside counsel for their handling of a disputed privileged email that was inadvertently sent by the plaintiffs' counsel to the defendant and shared with defendant’s outside counsel.

Defendants' Privilege Waived for "Completely Ineffective" Discovery Procedures. In a case over purported building and zoning code violations, an Illinois District Court has found the defendants responsible for inadvertently producing several privileged documents during discovery and for a failure to correct the problem in a timely manner, and has ordered the privilege to be waived.

Court Rules Against Exclusion of Privileged Email. A District of Columbia court has ruled against exclusion of a privileged email that was inadvertently produced by the defendant, ruling that the defendant's actions before and after the discovery of the email's production pursuant to Federal Rule of Civil Procedure 26(b)(5)(B) were not sufficient to ensure protections under Federal Rule of Exclusion (FRE) 502(b)(3), in a case involving alleged violations of the District of Columbia Whistleblower Act.

PROPORTIONALITY

With the explosion of data in the world and rising costs for preserving, collecting, reviewing and producing that data, it’s not surprising that eDiscovery costs are spiraling upward, causing many to cry “uncle” and making the word “proportionality” become quite trendy, with parties and even courts. Here are four cases where proportionality of eDiscovery was an issue. Oh, and if you can’t complete production until after the trial is over, that’s probably too late.

Completing Production AFTER Trial is Too Late. In this case, Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia denied the defendant’s request for consideration that the District had waived all objections, including privileges, and ordered production within one week of the close of trial. In denying the motion, the court likened the proposed production to “a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes.”

KPMG Denied in Request for “Proportionality Test” to Preservation. In this case, KPMG sought a protective order to narrow its preservation obligation scope to only a random sample of 100 hard drives from among those it had already preserved for this and other litigation or shift the cost of any preservation beyond that requested scope. With that request in hand, the court considered KPMG's request for proportionality as it applied to its preservation obligations.

Court Grants Adoption of Model Order for Patent Case. Model orders to limit discovery for patent cases have gained popularity in various jurisdictions, including a recent order proposed in Texas. Here’s one patent case where the defendant sought to adopt such a model order.

Plaintiff Not Required to Review Millions of Pages of Unallocated Space. In this case, the court affirmed the Magistrate Judge’s order which excused plaintiff from having to review and produce millions of pages of documents recovered from unallocated space files due to the extreme burden and cost to do so.

EDISCOVERY SERVICE DISPUTES

It’s a darn shame when law firms can’t get along with their corporate clients or with the vendors they hired. Perhaps the most discussed case of the year was the eDiscovery malpractice case involving McDermott, Will & Emery, with posts in eDiscovery Daily here, here and here. Here are two cases where the actual eDiscovery services being provided were in dispute:

eDiscovery Malpractice Case Highlights Expectation of Higher Standards. Having noted in eDiscovery Daily that competency ethics are no longer just about the law and that competency in eDiscovery best practices is expected from the attorneys and any outside providers they retain, this case may be the first eDiscovery malpractice case ever filed against a law firm (McDermott Will & Emery) for allegedly failing to supervise contract attorneys that were hired to perform the client’s work and to protect privileged client records.

Sometimes the Vendor Sues the Law Firm – And Wins! The eDiscovery malpractice case involving McDermott, Will & Emery associated with inadvertent production of 3,900 privileged documents has captured considerable interest in the industry and this blog. Sometimes, the “shoe is on the other foot”, so to speak.

Tune in tomorrow for more key cases of 2011 and see the topic that continues to generate more case law related to eDiscovery than any other!