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eDiscoveryDaily

eDiscovery Case Law: 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.

On May 19, the court ruled in favor of a motion to compel the plaintiff in Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) to disclose his usernames, login names and passwords for Facebook and MySpace accounts that contained hidden or private posts. Discoverability of social media continues to be a hot topic in eDiscovery, as eDiscovery Daily has noted in summaries of prior cases here, here and here that reflect varied outcomes for requests to access social media data.

In Zimmerman v. Weis Markets, Inc., the court ruled in favor of the defendant’s motion for several reasons involving the plaintiff’s use of public social media as well as the circumstances of the case:

  • The plaintiff’s public postings on the social media sites in question included discussion of his injury, which was deemed relevant to his claim of serious and permanent impairment. These public postings were construed by the court as sufficient to demonstrate likelihood that his non-public postings would also contain relevant information about his injury.
  • Although, the court did not wish its decision in this matter to be viewed as authorizing “fishing expeditions” to private social media accounts in personal injury cases in general, it reasoned that since examination of the public portions of the plaintiff’s Facebook and MySpace accounts turned up relevant evidence on the subject of the plaintiff’s injury, discovery of the remaining private postings was also likely to do so.
  • The court also reasoned that the plaintiff’s choice to bring this issue to trial, as well as his decision to share information about his injury online (showing pictures of him in shorts with his scar visible, as well as recent pictures with his motorcycle), meant that he could not have a reasonable expectation of social media privacy.

Although courts often permit eDiscovery of private and hidden social media postings, this decision by the court illustrates a need for relevance of the evidence to be shown before that permission is granted.

So, what do you think? Was the court wrong in allowing eDiscovery of personal Facebook and MySpace accounts, or does the plaintiff in a personal injury case waive his right to social media privacy? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Protocol for International eDiscovery Based on 41 Year Old Treaty
 

Last week, we talked about several challenges of international eDiscovery, including different laws regarding discovery practices, as well as cultural and privacy issues.  This week, we will talk about one of the primary mechanisms for conducting discovery internationally – the Hague Convention.

What is the Hague Convention? The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters – commonly known as the Hague Evidence Convention – is an international treaty created by the Hague Conference on Private International Law. It was negotiated in the late 1960's and signed on March 18, 1970.

There are 54 countries contracted to the Hague Convention, which means they have agreed to permit international attorneys to request evidence across foreign borders without first requiring that they pursue diplomatic approval. U.S. attorneys often rely on the provisions of the Hague Evidence Convention when conducting cross-border eDiscovery requests. As a result, they can save time and paperwork by avoiding consular and diplomatic channels and corresponding directly with legal counsel and individuals in international countries where the Hague Convention has been ratified.

Although it can simplify the process of requesting eDiscovery across borders, the Hague Convention does not guarantee that international discovery requests will be honored, in part or at all. Foreign courts in receipt of discovery requests will often exercise their own judgment in responding, based on the laws of their own nation states. As a result, eDiscovery requests may be refused or misinterpreted without any penalty under the Hague Convention. What's more, some of the countries that have signed choose to exert limits on the extent to which they agree with the Hague Convention, further complicating matters in cases where international eDiscovery is required from groups or individuals within these nations' borders. Use of the Hague Convention may be slow, inefficient, and does not guarantee results.

The U.S. was instrumental in the creation of the Hague Convention and one of the first countries to adopt it.  However, many international parties requesting information in the U.S. now do so via Section 1782 Discovery. This simpler provision in Section 1782 of Title 28 of the United States Code facilitates discovery cases where a document or electronic information is located in the U.S.  We will talk about this federal statute in more detail in our next post regarding international eDiscovery.

So, what do you think? Does the Hague Convention simplify the discovery process internationally, or is it time for a new, more up-to-date treaty or provision to facilitate international eDiscovery? Please share any comments you might have or if you'd like to know more about a particular topic.

Happy Independence Day from all of us at eDiscovery Daily and Trial Solutions!

Working Successfully with eDiscovery and Litigation Support Service Providers: Intro to Preparing RFPs
 

In the past several weeks, we’ve talked a lot about working with service providers.  We’ve covered what to look for when you’re evaluating vendors, how to select vendors, how to monitor vendor work and prevent problems, and how to establish and manage a preferred vendor program in a law firm. 

In the next few posts (which will conclude this vendor series), I will give you some very concrete information that will help you to generate good requests for proposals (RFPs).  A good RFP has two essential elements:

  1. Information that you provide about the case, your requirements and your expectations.  A vendor can’t provide you with good schedule and cost information if you haven’t provided good information to the vendor.
  2. Information that you request of the vendor.  You’ll have lots of questions about the vendor’s services, capabilities, flexibility, capacity, qualifications and costs.

We’re going to look at several electronic discovery services – for example, ESI processing, and ESI hosting – and we’ll walk through the information pieces that are important.  For each service, I’ll make suggestions for the information that you should provide, and I’ll make suggestions for the questions that you should ask. When the blog series is complete, you should have a good resource of information points and questions to include in your RFPs.

What type of information do you provide to a vendor in a RFP?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Case Law: Discovery Violations Result in Sanctions Against Plaintiff and Counsel

Yesterday, we reported on a case with no sanctions; today, we report on a case with a different outcome.

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.

In Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C09-1769 MJP (W.D. Wash. June 8, 2011), the plaintiff moved to voluntarily dismiss its case with prejudice. The defendants did not argue against dismissal but did seek sanctions from the plaintiff based on what they considered to be “a pattern of sanctionable discovery misconduct.” The court ruled that discovery abuses had occurred, and fined the plaintiff and plaintiff’s counsel $137,168.41 “jointly and severally”. The misconduct of the plaintiff, Play Visions, Inc., included:

  • Misrepresentation of Available Documents: Play Visions claimed that all relevant documents were kept in hard copy only; however, deposition of Play Visions’ CFO revealed that electronic records existed that should have been presented months earlier under discovery.
  • Falsified Expert’s Report: The plaintiff’s expert report was prepared by plaintiff’s counsel Mark Lorbiecki and only signed and “approved” by the expert. In addition, the court discovered that the plaintiff had violated the court’s protective order by revealing confidential information to the same expert witness.

As a result of these misrepresentations and discovery abuses and others, the court ruled for the defendant’s motion and demanded the plaintiff and its counsel pay sanctions:

  • The court found that Play Visions, Inc. had falsely certified that all relevant records had been saved in paper format and delayed the search and production of documents. Play Visions’ counsel was found to have been negligent in familiarizing himself with Play Visions’ document practices and to have failed in assisting his client in mandatory discovery.
  • Accordingly, the court considered every case where the defendant was forced to do extra work as a result of the plaintiff’s delays and inaccuracies, and fined Play Visions, Inc. and its counsel $137,168.41 jointly and severally, due within 15 days of the order.
  • Not finding “that the discovery violations in this case merit finding the entire case exceptional under 35 U.S.C. § 285”, the court ruled against shifting any attorney’s fees in this case.  Otherwise, the sanctions award could have been even higher!

So, what do you think? Do the discovery violations committed by Play Visions and by its attorney demand monetary sanctions on this scale? Did Play Visions actually believe that they had no relevant electronic files?  Please share any comments you might have, or let us know if you’d like to know more about a particular topic.

eDiscovery Case Law: 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.

The plaintiffs in Ajay Gaalla, et al v. Citizens Medical Center, et al, No. V-10-14, 2011 WL 2115670 (S.D. Tex. May 27, 2011) had made a motion for sanctions against the defendant for alleged damage to backup tapes, including emails and other electronic documentation. On May 27, the court denied the motion for sanctions against the defendant, although new instructions on maintaining copies of disaster recovery files have been imposed in this case.

  • Plaintiffs presented the argument that the “recycling” or overwriting of disaster recovery backup tapes by the defendant, performed on a 7- or 14-day cycle after the lawsuit was filed, represented spoliation. Accordingly, the plaintiffs requested the maximum sanctions against the defendant for “failure to preserve the backup tapes.”
  • Preservation of backup tapes was not previously been discussed in this case until this motion for sanctions on grounds of data spoliation, but plaintiffs alleged that the failure to preserve backups, coupled with the failure to take snapshots of particular email accounts and “evidence that certain CMC employees had deleted emails from their account at some point in the past”, warranted harsh sanctions.
  • The defendants argued that they had no duty to preserve backups of records, since disaster recovery systems are “rarely” backed up after litigation has begun. They also presented “snapshots” taken of email accounts to demonstrate that there was no intent to destroy information and that attempts had been made to record all relevant evidence.
  • The court referred to the ruling in Zubulake v. UBS Warburg LLC, 220 F.R.D. (S.D.N.Y. 2003), which states: “[A] litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company’s policy.” Under this standard, the court found that the defendant was within its rights to overwrite the existing backups as often as such maintenance was normally scheduled.
  • The court also ruled that, with no prior discussion of the backup tapes and “in the context of this case,” there was no cause for sanctions against the defendant, lacking evidence that the defendant acted in bad faith in recycling the tapes used to make the recovery backups.
  • However, the court did order additional discovery efforts to be undertaken in the form of “disaster recovery first of the month” email files to be preserved in their current state and that plaintiffs’ expert be allowed to search them (at defendant’s expense) as well as a “journaling” process to retain email accounts of key parties in the case.

So, what do you think? Do parties have an obligation to maintain copies of all backup tapes for litigation? Please share any comments you might have, or let us know if you’d like to know more about a particular topic.

eDiscovery Best Practices: Legal Project Management is the Same as Project Management
 

I found this article (Holy semantics Batman! There is no such thing as ‘legal project management’) which provides a good look at legal project management on the Legal IT Professionals site from Jeffrey Brandt, a previous thought leader interviewee of eDiscovery Daily.  I like this article for two reasons:

  • References to the Old Batman TV Series: Like the author, I watched every episode of the show back in the day, so I had to appreciate the analogy of putting the prefix “Bat” on everything (e.g., “Batcave”, “Batmobile”, “Shark Repellent Bat Spray”, etc.) to adding “legal” to “project management”.  It also gave me the opportunity to re-link to one of very first posts, which has a link at the bottom to a snippet from the old Batman series that always makes me laugh.
  • Clarification as to the Differentiation of ‘Legal Project Management’: According to the author, there is no differentiation.

The author notes that “The underpinnings and basic tenets of project management are 1) accomplishing a defined goal or set of goals; 2) working within a specific time line; and 3) working within a set of defined resources (most often personnel and cost). That can be applied to literally anything.”

True.  While I don’t necessarily believe that an experienced project manager can just “waltz” into managing legal-related projects with no knowledge of the legal industry and what the issues are, the best practices of project management are the same, regardless of the type of project being managed.

For example, I manage rollout coordination for our review platform, OnDemand®.  In a past life, I used to develop, but now I’m too far removed from the process to write web code, implement server configurations or fully understand all of the differences between the different versions of SQL Server.  My primary focus in the rollout management role is to coordinate communication between the developers, testers and support staff to make sure we stay on schedule for each software release to get as many of the proposed features as ready for rollout as possible.  Every time I try to get too much into the details of development, I get in trouble.  Just ask the development staff!  😉

So, what do you think?  Is there a difference between ‘legal project management’ and ‘project management’?   How much legal industry experience do you need to have to manage legal-related projects?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: Never Mind! Judge Scheindlin Withdraws FOIA Requests Opinion

Back in February, eDiscovery Daily reported that Southern District of New York Judge Shira A. Scheindlin’s latest opinion regarding eDiscovery best practices.  In National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 10 Civ. 3488, she ruled that the federal government must provide documents “in a usable format” when it responds to Freedom of Information Act (FOIA) requests.

In this case, the National Day Laborer Organizing Network, Center for Constitutional Rights and the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law sued to require production of a wide range of documents under the Freedom of Information Act in August 2010.  In response, the government agency defendants produced documents grouped together in large files that were not searchable, for which individual documents could not be easily identified, with emails separated from their attachments.

In ruling at that time, Judge Scheindlin noted that “Once again, this Court is required to rule on an eDiscovery issue that could have been avoided had the parties had the good sense to ‘meet and confer,’ ‘cooperate’ and generally make every effort to ‘communicate’ as to the form in which ESI would be produced.”, and ruled that federal agencies must turn over documents that include “metadata,” which allows them to be searched and indexed.  Indicating that “common sense dictates” that the handling of FOIA requests should be informed by “the spirit if not the letter” of the Federal Rules of Civil Procedure, Judge Scheindlin indicated the government offered “a lame excuse” for delivering non-searchable documents.  A copy of the original opinion and order can be found here.

Now, that opinion has been withdrawn.

In a very short order withdrawing the opinion, Judge Scheindlin stated:

“This court has been informed that the parties have recently resolved their dispute regarding the form and format in which records will be produced by defendants in this Freedom of Information Act lawsuit.  In the interests of justice, this Court now believes that it would be prudent to withdraw the opinion it issued on February 7, 2011 (Docket #41).  I do so because, as subsequent submissions have shown, that decision was not based on a full and developed record.  By withdrawing the decision, it is the intent of this Court that the decision shall have no precedential value in this lawsuit or in any other lawsuit.

The Court also withdraws its Supplemental Order dated February 14, 2011 (Docket # 50).”

So, as Emily Litella would say, “Never Mind!”

So, what do you think?  What impact does the withdrawal of the opinion have on future eDiscovery cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: The Challenges of International eDiscovery
 

Litigation would be simpler if business never crossed international boundaries, but it often does. Global corporations have dozens of offices and thousands of employees scattered around the world, while smaller businesses may outsource call center work or manufacturing to China, India, or other countries that offer inexpensive labor.

As a result, eDiscovery can be complicated by international laws and the regulations regarding discovery across national borders, as well as the usual questions that affect legal discovery within the United States. Even if US courts have jurisdiction over entities from other countries and the Federal Rules of Civil Procedure apply to discovery requests, there are still several issues and challenges associated with international eDiscovery, including:

  • Location of Data: Thanks to the widespread use of cloud computing and other types of online storage, the physical location of ESI sought in eDiscovery is not always easy to pinpoint. Information transmitted electronically in an email or text message, can pass through any number of phone lines and routers, to many servers and client machines around the globe, so determining the location of a message can become virtually impossible. As a result, it can be difficult to know which nation's laws on eDiscovery should be applied, much less how to execute them.
  • Expense: Due to the complexity of requesting eDiscovery through foreign channels, and under the legal restrictions imposed by foreign governments, the cost of tracking information across international borders is much higher than eDiscovery conducted solely within the US.
  • International Law: Every nation has its own laws and regulations surrounding electronic data and discovery practices, so it's important to understand legislation in the relevant countries and, when appropriate, take measures to contact the proper authorities before moving forward. Discovery practices that are common and legal in the US can be considered criminal in some other countries, so it’s critical to have foreknowledge of the laws and rules you'll be facing.
  • Cultural Issues: Along with variations in international law comes the difficulty of rationalizing the need for eDiscovery to foreign countries who may have different views on privacy. In a country where pretrial discovery is not the norm, the request for eDiscovery may be a strange and unwelcome concept that can often result in misunderstandings and non-compliance. Explaining American laws and customs becomes a vital role of any attorney seeking international eDiscovery.

In future posts, we will be discussing international eDiscovery issues in more depth, including the Hague Convention, privacy protection laws, blocking statutes and other challenges to eDiscovery abroad.

So, what do you think? Have you experienced these same issues, or are there other challenges you've faced in international eDiscovery? Please share any comments you might have, or let us know if you'd like to know more about a particular topic.

eDiscovery Case Law: District Court Judge Affirms $1 Million Sanction to Pappas in Victor Stanley
 

One of the first posts ever published in eDiscovery Daily was this one, where 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 that will be awarded to Plaintiff as the prevailing party pursuant to Fed. R. Civ. P. 37(b)(2)(C).”.  Judge Grimm found that “Defendants…deleted, destroyed, and otherwise failed to preserve evidence; and repeatedly misrepresented the completeness of their discovery production to opposing counsel and the Court.”

Upon appeal, District Court Judge Marvin J. Garbis declined to adopt the order regarding incarceration, stating: “[T]he court does not find it appropriate to Order Defendant Pappas incarcerated for future possible failure to comply with his obligation to make payment of an amount to be determined in the course of further proceedings.”

Then, in January of this year, Judge Grimm entered an order awarding a total of $1,049,850.04 in “attorney’s fees and costs associated with all discovery that would not have been un[der]taken but for Defendants' spoliation, as well as the briefings and hearings regarding Plaintiff’s Motion for Sanctions.”  As a result, the court awarded $901,553.00 in attorney’s fees and $148,297.04 in costs, including the costs for the Plaintiff’s computer forensic consultant, finding that “Defendants’ first spoliation efforts corresponded with the beginning of litigation” and that “Defendants’ misconduct affected the entire discovery process since the commencement of this case.”

Naturally, the award was appealed.

On Tuesday, June 14, Judge Garbis affirmed Judge Grimm’s prior Report and Recommendation ordering the award.  Judge Garbis noted that “The Court’s stated standard for includible fees and costs is consistent with the purpose of designing a sanction that will ‘restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.’  Judge Garbis discussed and rejected all of Creative Pipe’s objections as to the amount of the award, adopting Judge Grimm’s findings that all of these fees were in fact related to the discovery malfeasance.

With Creative Pipe having already paid a total of $478,409.92, a balance remains under the order of $571,440.12, which concluded with Judge Garbis stating that “Defendants shall, by July 15, 2011, pay Plaintiff…the balance due”.  No mention of Judge Grimm’s original automatic jail sanction for non-payment of the fees, though, Judge Garbis originally said he might impose jail sanctions for non-payment.

So, what do you think?  Will the defendant pay the rest?  Appeal to the Circuit Court?  Could he still go to jail?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: You Have to Be Certifiable to Work in eDiscovery
 

In any industry, it becomes important to be able to gauge the knowledge and capabilities of your service provider.  As we noted recently with regard to cloud-based Software-as-a-Service (SaaS) providers, certification builds a client's trust and confidence in the service provider.  While no industry standard certification has emerged for eDiscovery professionals – yet – some independent certification programs are in various stages of implementation to measure proficiency with eDiscovery best practices.

One program that is already in place today to verify eDiscovery competency is the Association of Certified E-Discovery Specialists® (ACEDS™), which is a relatively new organization that is gaining popularity as a member organization of eDiscovery professionals and a certification program with the Certified E-Discovery Specialist (CEDS) certification.  Last week, I spoke with Charles Intriago, President and Gregory Calpakis, Executive Director about ACEDS, how the program has evolved to this point and where it’s headed.

The group that founded ACEDS (The Intriago Group) is not new to certification programs, having previously established the Association of Certified Anti-Money Laundering Specialists (ACAMS), which, according to Intriago, has become the “world standard” certification for private and public sector professionals (including the FBI, FDIC, OCC, and IRS) for detection and prevention of money laundering.

Development of the certification program was a laborious eight month process than began last year.  Highlights of that process include:

  • Psychometric Development: ACEDS used Kryterion, an organization dedicated to construction and validation of knowledge measurement tests, to develop the certification test.  Experts in constructing exams, Kryterion uses psychometrics to create exams that are fair and unambiguous to truly measure the knowledge and ability of the test taker.
  • Expert Involvement: Twelve experts throughout the country identified over 78 eDiscovery-related job tasks.
  • Initial Survey: From this information, a 272 question survey was sent out to thousands of people for information gathering purposes, with more than 430 responses to the survey received, which defined the frequency, relevance and importance of those tasks.  Based on the responses, statisticians ranked the tasks by occupation and importance to the eDiscovery process.
  • Question Development: ACEDS then gathered some forty experts to draft four-choice, multiple choice scenario-based questions for the exam.  222 initial questions were drafted.
  • Expert Refinement of Questions: Every question, or “item,” was then reviewed by a panel of at least six experts in a series of conference calls from August to October of last year.
  • Beta Testing: The initial version of the exam was launched on November 1 of last year, with more than 50 people taking the test in one of many Kryterion test centers.  A scientific analysis was then performed of the test results to determine how each question performed and confirm that each test question was fair, clear and unambiguous.
  • End Result: The current version of the exam was finalized in mid-March of this year and is 145 questions and must be completed in four hours.  So far, more than 100 people have taken it, with approximately 75% of them passing the test and receiving the certification.

The certification exam is focused on job tasks and practical job challenges, not changing case law, which Intriago, who is a lawyer and previously a partner at a large international law firm, federal prosecutor and Congressional subcommittee chief counsel, noted applies only to the districts where the cases are decided, in the absence of a Supreme Court ruling.  When you sign up for the exam, you receive a CEDS exam preparation manual, which covers the considerable range of eDiscovery topics covered in the exam.  Benefits of certification include private and public sector employer confidence in the competence of their employees, improved job and increased salary prospects, increased credibility, chance for reduced malpractice premiums, potential promotion to new positions, as well as a potential raise in billing rates.

The price of the exam and CEDS exam preparation manual is $995 ($795 if you’re an ACEDS member – membership can range from $150 to $195 for general and government memberships).

ACEDS is committed to keeping the certification program up to date and boasts a 16 member advisory board that includes a former president of the American Bar Association, former chief justice of the Supreme Court of Florida, and key decision makers from major law firms and corporations.  The ACEDS site also has independent reporting in the News & Analysis section of the site, including this article referenced by eDiscovery Daily just last week.

For more information, go to aceds.org.

So, what do you think?  Is eDiscovery certification important to you?  Please share any comments you might have or if you’d like to know more about a particular topic.