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eDiscoveryDaily

If You’re Reading This, It Probably Doesn’t Apply to You: eDiscovery Best Practices

On the veritable eve of the annual Georgetown Law Center eDiscovery Training Academy (covered by us here), Craig Ball (who is in the midst of that very academy now) has asked the question Have We Lost the War on E-Discovery?  But, if you’re reading that (or this blog post), it probably doesn’t apply to you.

In Craig’s post from last Thursday, he notes that the idea that there is a war on eDiscovery “[s]ounds like a paranoid notion, but the evidence is everywhere.”  He observes that he is “flummoxed by how the tide has turned to anti-discovery topics”, such as proportionality, privacy, General Data Protection Regulation (GDPR) and cybersecurity.  He notes that “[t]hese are important topics” and that “[d]iscovery needs to be just, speedy and inexpensive”, but asks “why do we keep forgetting that there’s a comma in there?  Will we ever balance our self-interest in advancing our client’s wishes against our common interest in a justice system that serves everyone?”

Craig also notes that “Impractical, misplaced and mistimed topics like blockchain,” (oops, we did that in a blog series and webcast) “Dark Web and AI serve to eat up time that should be devoted to e-discovery topics about which lawyers still desperately need practical instruction.”  In asking you whether there is a war on eDiscovery, Craig also challenges you to “[l]ook at the agenda of any major e-discovery conference” and “[c]ount the hours devoted to practical e-discovery skills that support the finding and turning over of relevant evidence”, then “count the hours devoted to telling lawyers how to limit discovery, challenge discovery, assert proportionality, protect privacy, enforce data security, manage data breaches, delegate discovery to vendors, cut costs or cede their roles to robots.”

Craig, in referencing the “last round of e-discovery rules amendments”, also observes that requesting parties are not winning the war on eDiscovery and notes that “Corporations spent more money lobbying for the 2015 e-discovery rules changes than has ever been spent in support of procedural rules amendments since 1939.   Final score: Funders 1, Founders 0.”

Craig is not wrong about any of this.  He was one of the experts that discussed the challenges facing plaintiff’s attorneys in Tom O’Connor’s recent series on our blog.  There are a lot of challenges and we will touch on that tomorrow and later this month in our monthly webcast.

But, here’s the problem.  Most of the people who are in this predicament are probably not reading about this in Craig’s blog – or here.  They aren’t requesting those hours of instruction on practical eDiscovery skills.  They aren’t reading the blogs and other publications to learn more about what they should be doing (at least when we do cover those topics).

If they did, the webinars and blogs and conferences might just cover those topics more.  They cover what their viewers/readers/attendees are asking for.  And, it’s not usually the practical eDiscovery skills because many of the people who view the webinars, read the blogs and attend the conferences have learned about those already.  They are among the small percentage who have obtained that knowledge already and want to move onto newer topics that are more interesting to them.  It’s the rest of the people who haven’t.  And, unfortunately, they are the ones who are not reading Craig’s blog, or this one.

So, what do you think?  Do you want to see more practical eDiscovery skills covered on this blog?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

With No Showing of Prejudice, Court Denies Spoliation Sanctions Against Defendant: eDiscovery Case Law

In Mafille v. Kaiser-Francis Oil Co., No. 18-CV-586-TCK-FHM (N.D. Okla. May 21, 2019), Oklahoma Magistrate Judge Frank H. McCarthy, finding that the plaintiffs “have not demonstrated they have been prejudiced” by the loss of the plaintiff former employee’s work computer, denied the plaintiffs’ motion for sanctions “without prejudice to reassertion of the motion if through discovery it is determined that some specific evidence is beyond Plaintiffs’ reach” for the defendant’s “clear failure” to preserve the computer.

Case Background

In this employment discrimination action filed by a former employee of the defendant who was terminated on July 5, 2018 for alleged performance issues, the plaintiff submitted an EEOC charge of discrimination on August 1, 2018 and issued a Right to Sue letter on August 15, 2018.  The plaintiffs commenced the action in October 2018 and the action was removed to federal court in November 2018.  On October 29, 2018, defendant’s counsel sent an email to plaintiffs’ counsel instructing them about plaintiffs’ obligation to preserve data on all electronic media and lectured plaintiffs about their duty to preserve evidence in a subsequent email.

However, an IT supervisor for the defendant stated in his deposition, that (the former employee) Mrs. Mafille’s computer was given to a charitable organization with other retired computers on November 3, 2018 and as a result the data contained on the computer was not preserved and presumably destroyed.  While Mrs. Mafille stated that she was “unaware of the extent of information that might have been on her [work] computer”, the plaintiffs nonetheless asserted that Mrs. Mafille’s workplace computer was willfully and intentionally destroyed, that it may have provided a “treasure trove” of information concerning her work performance over the entire term of her employment, and that as a result the plaintiffs had been irretrievably prejudiced.

Judge’s Ruling

Judge McCarthy stated: “In defense of its failure to preserve the computer, Defendant makes what the court views as an ill-considered assertion that if Plaintiffs had made a request for the computer earlier than they did, the computer could have been pulled and saved…As evidenced by the emails from Defendant’s attorney lecturing Plaintiffs about their obligation to preserve electronically stored evidence, it is abundantly clear that counsel was aware of Defendant’s own responsibility in this regard. The duty to preserve the electronically stored evidence exists independent of a specific request that the evidence be preserved. It is exceedingly poor form, and beyond zealous advocacy, for Defendant to attempt to blame Plaintiffs for its own obvious failing. The court finds that Mrs. Mafille’s work computer should have been preserved and further that Defendant is solely and entirely at fault for failing to take reasonable steps to preserve the computer.”

However, Judge McCarthy also observed that “Defendant asserts that sanctions are not appropriate because Plaintiffs have not demonstrated they have been prejudiced by the loss of Mrs. Mafille’s work computer. According to Defendant, a policy was in place requiring that materials be uploaded to Defendant’s LAN Server daily. As a result, there should not have been relevant materials on the subject computer that are not also accessible on the LAN Server. Defendant also asserts that it has requested Plaintiffs to identify what items were on Mrs. Mafille’s computer so an attempt can be made to recover the items from the LAN Server, but Plaintiffs have not identified any such items.”

Stating “[b]efore an order of sanctions may be entered, there must be a showing of prejudice”, Judge McCarthy denied the plaintiffs’ Motion for Sanctions “without prejudice to reassertion of the motion if through discovery it is determined that some specific evidence is beyond Plaintiffs’ reach because of what the court views as Defendant’s clear failure to preserve Mrs. Mafille’s work computer.”

So, what do you think?  Did the defendant get lucky there?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

If You’re “Certifiable”, You Must Be “Committed”: eDiscovery Trends

Despite what the title might suggest, this is an eDiscovery related post, not a psychological one.  Certifications have become increasingly important in eDiscovery today and a couple of recent events illustrate how “committed” CloudNine is to eDiscovery professionals who are “certifiable”.

I can’t believe it has taken me this long to mention it, but I was recently interviewed by Jared Coseglia, founder and CEO of TRU Staffing Partners for Legaltech® News regarding our training and certification program for our CloudNine LAW product (The LAW PreDiscovery Certification is Back).  In that interview, Jared and I discussed the direction of LAW and how much CloudNine has invested in the product since we acquired it (along with Concordance and Early Data Analyzer, now rebranded as CloudNine Explore) in terms of doubling our development and customer success staff for the products.  As a result (shameless plug warning!), we have rolled out a number of new features and capabilities, including our new 64-bit ingestion “Turbo Import” module that has increased ingestion speed as much as 1200 percent in our tests.

But, another big part of LAW being back has been re-instituting the training and certification program for LAW.  While all these changes in functionality mean updates to the training and certification program, we have been working hard to make those updates to support a training and certification program that reflects those updates.  The end result is a certification program that reflects the most recent updates to the product and CloudNine will be looking to implement a two-year renewal to make sure that certified LAW professionals have certified training on the latest features.

If you’re an organization that uses LAW (or develops the product, like we do), that up-to-date certification will become more and more important in hiring eDiscovery professionals with experience in LAW.  Let’s face it, given the choice between two otherwise equivalent professionals – one who has an up-to-date certification in LAW and one who doesn’t – who wouldn’t pick the one who has the up-to-date certification every time?

Which leads me to the other event: yesterday’s announcement that CloudNine has renewed its partnership affiliation with the Association of Certified eDiscovery Specialists (ACEDS).  How far has ACEDS come in the past three plus years?  ACEDS today has 20 chapters across the globe, and over 10,000 professionals tuned into their weekly newsletter, which is great and it’s due to the leadership of ACEDS executive director Mary Mack and VP of Client Engagement Kaylee Walstad (and the team that support them).

Like CloudNine and our eDiscovery Daily Blog, ACEDS has been committed to education of eDiscovery professionals in a variety of ways, through webinars (some of which we have partnered with them on) and other educational programs, and especially through certifications.  It wasn’t that long ago that an industry survey showed that eDiscovery professionals were only slightly more than 50-50 on eDiscovery certifications, but the ACEDS certification today has clout like never before.  The ACEDS certification could make the difference between getting that important eDiscovery job and not getting it.  So, if you’re certifiable – and you’re committed – that could actually be a good thing (at least from an eDiscovery standpoint, if not a psychological one).

So, what do you think?  Do you have an ACEDS certification or some other eDiscovery related certification?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Does Louisiana’s Tech Ethics Opinion Miss the Mark? Depends on Who You Ask: eDiscovery Trends

Last week, I read an article from Bob Ambrogi on Above the Law, that discussed his opinion (as well as that of Nicole Black, discussed in her Sui Generis blog) that the recently adopted Louisiana ethics opinion misses the mark with regard to guidance to lawyers regarding their ethical duty to understand technology.  When I saw that, I reached out to my good buddy Tom O’Connor (and the longest tenured Louisiana attorney I know, sorry Craig), for his take.  Did he agree with that assessment?  As Tom put it in his own Techno Gumbo blog (channeling his internal Lee Corso), “not so fast, my friend”.

The first shortcoming that Bob and Nicole point out has to do with language that seems to indicate that the duty to be competent in technology should kick in only if a lawyer “chooses” to use technology.  Two quotes from the opinion are as follows:

Spanning the bottom of page 1 and top of page 2: “The consensus is that if a lawyer is going to use technology, that lawyer has a duty to comply with Rules 1.1, 1.3, 1.4, 1.6 and 1.15 of the ABA Model Rules of Professional Conduct.”

First paragraph at the top of page 7: “Additionally, lawyers have ethical rules that require confidentiality of client information.  Thus, if a lawyer chooses to use technology in the lawyer’s practice, basic issues must be addressed.”

Bob identified a second shortcoming of the opinion via the Conclusion on page 9, that it “is directed solely at a lawyer’s own use of technology”, which “misses a critical component of the duty of technology competence – understanding the client’s use of technology”.

Here is that Conclusion: “A lawyer must consider the benefits and risks associated with using technology in representing a client.  When a lawyer uses technology in representing a client, the lawyer must use reasonable care to protect client information and to assure that client data is reasonably secure and accessible by the lawyer.”

Bob also referenced that “the ABA’s first opinion to address Model Rule 1.1, Comment 8 — Formal Opinion 477 issued in 2017 — makes the point repeatedly that the duty of technology competence encompasses the ability to understand how the client uses technology, what technology systems the client uses, and the client’s degree of technology sophistication.”

Tom noted that ABA Model Rule 1.1, Comment 8 was “horribly vague” when it was passed in August of 2012 and merely says  “ … a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  He also noted that Formal Opinion 477 dealt specifically with Securing Communication of Protected Client Information, the actual title of the Opinion and was “a specific technical discussion and not that of an overall duty of technical competence.”

Tom also noted that “everyone discussing this topic, quotes the The State Bar of California’s Formal Opinion No. 2015-193 with its ‘6 things ever lawyer needs to know about technology’ emphasis”, but that opinion is positioned as “advisory only” and “specifically refers ONLY to eDiscovery matters.”  Despite the fact that California is the only state to issue an eDiscovery competence opinion, they are one of only 14(?) states now that still hasn’t adopted the ABA Model Rule for technology competence.  Go figure.

With regard to whether the Louisiana opinion implies a choice of whether or not to use technology. Tom says “I personally think that’s splitting hairs in a way the Code doesn’t intend.  Perhaps a better word would have been ‘when’ not ‘if’, but still, do we seriously think anyone is NOT using technology? I mean they could choose not to use a phone either but I’m guessing their work would diminish. Rapidly.”  And, he notes that only two states have passed a subsequent CLE requirement for gaining that tech competence, so, by that standard, nearly every state (except for Florida and North Carolina) falls short.  That may be the real indicator that we still have a long way to go on attorney tech competence across the country.

I hit the highlights of the respective arguments, but I encourage you to read each of their articles/posts for more information.

So, what do you think?  Did Louisiana miss the mark with its ethics opinion on lawyers’ use of technology?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Today’s Webcast Will Help You Learn How to Keep Production from Becoming Such a Big Production: eDiscovery Webcasts

Does it seem like eDiscovery production always turns into a big production? It doesn’t have to do so. There are a number of steps you can take to minimize the stress, cost and rework associated with producing electronically stored information to opposing counsel as well as to ensure that their production to you is as useful as possible.  Today’s webcast will help you learn the steps and concepts to keep your productions from turning into a big production.

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Keeping Production from Becoming a Big Production. In this one-hour webcast that’s CLE-approved in selected states, we will discuss some of the most common steps you can take during the discovery life cycle to keep your eDiscovery production on track. Topics include:

  • When to Start Thinking About the Production
  • Proactively Addressing Inadvertent Privilege Productions
  • Up Front Planning to Reduce Your Production Burden
  • Avoiding Getting Stuck with a Bad Production from Opposing Counsel
  • Understanding Your Data to Drive Discovery Decisions
  • Minimizing Potential ESI Spoliation Opportunities
  • Eliminating Processing Mistakes that Can Slow You Down
  • Common Searching Mistakes and How to Avoid Them
  • Avoiding the Redaction “Epic Fail”
  • Understanding Load Files and Common Issues with Them
  • Ensuring a Smooth and Accurate Production Set

As always, I’ll be presenting the webcast, along with Tom O’Connor, whose white paper regarding production challenges and how to address them was published last month on the blog.  To register for it, click here.  It’s not too late!  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn about how to make your production become less of a major production, this webcast is for you!

So, what do you think?  Do you find your productions always turn into a big production?  If so, please join us!  If not, please join us anyway!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Upholds Decision Not to Compel Plaintiff to Produce Unredacted Narrative of Events: eDiscovery Case Law

In Kratz v. Scott Hotel Group, LLC, No. 4:17-cv-00212-TWP-DML (S.D. Ind. Apr. 29, 2019), Indiana District Judge Tanya Walton Pratt, stating “[t]o invoke schoolyard vernacular: no do-overs”, denied the defendant’s objections to the Magistrate Judge’s decision not to compel the plaintiff to produce versions of an unredacted narrative of events associated with his hotel stays and interactions with hotel staff.

Case Background

In this class action lawsuit against the defendant alleging violation of the Indiana Consumer Protection Act, breach of contract and misrepresentation, the plaintiff revealed during a deposition that he had created a narrative of events in a Microsoft Word file to document his hotel stays and interactions with hotel staff.  Later, the plaintiff produced a redacted version of the narrative in PDF format and claimed work product privilege over the redactions, to which the defendant objected.

In October 2018, the parties convened for a discovery conference with the Magistrate Judge, who, under the impression that only one (redacted) version of the narrative existed, denied the defendant’s request to require the plaintiff to produce the unredacted version of the narrative.  The defendant filed an Objection to the ruling in November 2018, pursuant to Federal Rule of Civil Procedure 72(a).  However, the Magistrate Judge subsequently discovered that the plaintiff’s counsel misrepresented the facts at that discovery conference and that the plaintiff had sent the earliest, native (unredacted) version of the document to his attorney in September 2017.  The plaintiff had sent subsequent versions of the document, updated in preparation of litigation, to his attorney in April 2018 and June 2018.  Upon learning this information, the Magistrate Judge amended her ruling and ordered the plaintiff to produce the September 2017 version of the narrative in its native Word document format, but not the last two versions because they were determined to be made in anticipation of litigation.  The defendant maintained its objections to the Magistrate Judge’s ruling as to the second and third iterations of the narrative.

Judge’s Ruling

Judge Pratt noted that “Scott Hotel presents numerous arguments that were not made at the October 29, 2018 conference before the Magistrate Judge”, but also noted that the defendant’s objection briefing “treats the Court’s review of the Magistrate Judge’s decision as an opportunity for de novo presentation and review.”  With regard to those arguments, Judge Pratt concluded that the presentation of arguments not raised before a magistrate judge is “clearly inappropriate” and stated that she “will disregard newly submitted arguments regarding waiver of work product protection and attorney-client privilege. ‘To invoke schoolyard vernacular: no do-overs.’”

As for work product protection for the modifications performed to the document in anticipation of litigation, Judge Pratt stated that “[t]he mere fact that Kratzer recorded his thoughts in anticipation of litigation as modifications and additions to a pre-existing document instead of in a new document does not exclude those thoughts from work product protection.”  Given “Scott Hotel’s ability to depose Kratzer and access most of the content of the later versions of the narrative renders its [substantial need and undue hardship] arguments unpersuasive”, Judge Pratt denied the defendant’s Objection to the Magistrate Judge’s decision.

So, what do you think?  Do you think that modification of a document previously ruled as not privileged could be considered privileged if it was done in anticipation of litigation?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, Part Five

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was last Tuesday, part two was last Thursday, part three was Monday and part four was Wednesday, here is the fifth and final part.

Conclusions

Finally, I asked several of our stalwarts to address the questions I posed back in the Introduction to this article.

With regards to the question “Do symmetrical cases (both parties producing comparable discovery) differ from asymmetrical cases (one side has vast majority of discovery) that much in terms of strategy?”, Craig said:

“Plaintiffs mistakenly assume they don’t have anything to preserve, process and search.  They often have much more than counsel appreciate yet lack wherewithal to deal with it.  Plaintiffs’ lawyers who fail to bring the same diligence and skill they demand from the defense to their own client’s data are easy targets for costly do-overs and serious sanctions.  Defense counsel often harbor the same mistaken assumptions about asymmetry and fail to exploit this pressure point.  That luck won’t last, so plaintiffs’ lawyers better get on the stick when it comes to defensible legal holds, collection, processing and review.”

Craig had also addressed the question “Are plaintiffs more interested in expanding the scope of production (to get more potential evidence) or avoiding the old “document dump” because they don’t have the resources?  Or does it depend on the type of plaintiff?” with his comments on shortsightedness by saying:

“… plaintiffs’ lawyers tend to rashly agree to almost anything to get something.  They accede to bad protocols, shoddy searches and dumbed-down forms of production by being in too big a hurry to get their hands-on production and start taking depositions.” 

With regards to the question “Are plaintiffs more motivated to request native files than defendants because they are more invested in using the metadata?”, all our experts agree that plaintiffs want native files more than defendants because they want the original metadata while defendants are far more likely to already have invested substantial sums in database technology into which they have loaded their data and can use that to screen their productions.

Lastly, with regards to question “Does the EDRM model seem more like a defense model than a plaintiff model, given that it is more focused on producing then presenting?  Should there be a model for requesting parties?”, our experts felt it leaned towards a defense model not because it was more focused on producing then presenting, but because the people who first originated it and later promoted it were defense oriented so that was their natural inclination.

A larger problem for plaintiffs’ attorneys beyond the EDRM focus is changing their paradigm from documents to data. As Craig Ball noted:

“Plaintiffs’ lawyers are hamstrung by paper presumptions unsuited to a digital universe. Lacking insight into modern information systems, they don’t know how to fight back like coders instead of cavemen.  So, they flail and whine that the production ‘just feels like it should be more’ without being able to articulate why and how or produce evidence to support their motions – crucially lacking the ability to educate the bench and secure relief.  Plaintiffs get run over roughshod trying to argue what they need to prove.”

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will resume with new posts on Tuesday, after the Memorial Day weekend.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Sanctions US Government for Spoliation in Copyright Infringement Case: eDiscovery Case Law

In 4DD Holdings, LLC v. U.S., No. 15-945C (Fed. Cl. May 10, 2019), the US Court of Federal Claims, in an opinion issued by Judge Bruggink, “grant[ed] plaintiffs’ motion for sanctions because the government destroyed relevant evidence that it had a duty to preserve.”  The Court directed the plaintiffs to “file a motion, appropriately supported, seeking a recovery of its costs and fees related to the motion for sanctions and with respect to discovery prompted by the destruction of evidence” and indicated it would “defer until summary judgment or trial the application of the evidentiary implications of this ruling.”  The court also denied the defendant’s motion to dismiss “[b]ecause plaintiffs established that the government authorized or consented to SMS’s allegedly infringing activity when working in SMS labs.”

Case Background

In this copyright infringement case involving installation of the plaintiff’s software in excess of the purchased license, the DoD’s Defense Health Agency (“DHA”) “repeatedly” required its contractor Systems Made Simple, Inc. (“SMS”) to perform work using the plaintiff’s copyrighted software in the contractor’s own labs.  The agency purchased a software license from the plaintiff’s reseller for 64 cores and the plaintiff’s End User License Agreement (“EULA”) permitted “the agency to make ‘one (1) copy of the object code to [TETRA] solely for back-up purposes,’ which it could only use ‘if the original copy is damaged or destroyed.’”  The agency also required the plaintiff to disable its software tracking feature to inform it of a software installation.

However, the Chief Engineer on the project (David Calvin) acknowledged in both his July 2018 declaration and his October 2018 deposition that work by SMS would have involved cloning TETRA virtual machines in their labs.  And, in August 2014, the plaintiff contacted the Contracting Officer’s Representative (Sheila Swenson) alleging that more than 64 cores were in use.  In September, Calvin directed the removal of instances of the plaintiff’s software in certain environments.  By December 2014, the agency “identified an over deployment of 168 core licenses to development servers.”  Nonetheless, Swenson reported 64 cores in use because that was the number of cores the agency had originally paid for.  In March 2015, the agency modified the license to increase the licensed quantity by 168 cores.

The plaintiff filed suit in August 2015. On September 9, 2015, the Department of Justice sent a letter to alert DoD of its responsibility to provide a litigation report and to furnish all evidence in DoD’s possession, stating “all records storage centers and other facilities where records are kept be immediately notified to forthwith identify, physically segregate and withhold from destruction all documents and papers touching upon the claims set forth in the complaint.”  Nonetheless, the agency’s Development Test Center (“DTC”) proceeded with a shredding of hard drives later that same month.  In addition, most of the laptops in use related to the project were returned and reimaged months after the litigation hold notice was issued, destroying any data related to the case they might have contained.  As discovery wound down, plaintiffs filed a motion for sanctions in November 2018.

Court Ruling

The Court found that “SMS was acting (1) “for the Government” and (2) “with the authorization or consent of the Government” when it performed any infringing activity in SMS labs.”  As a result, the Court denied the defendant’s motion to dismiss.

With regard to the plaintiffs’ motion for sanctions, the Court said: “The parties agree on the key events: The agency deleted instances of TETRA during the true-up period without informing 4DD. The agency destroyed the DTC servers’ hard drives. The agency erased all the information on many laptops used on the DMIX project.”  With regard to the DTC servers, the Court ruled that “Mr. Calvin’s orders directing contractors to delete instances of TETRA in listed environments because of ‘a license issue’ is sufficient to demonstrate that he intentionally deprived 4DD of the use of that information in litigation.”  But, the Court also noted that the “DTC decommissioning and laptop reimaging are not as clear cut”, ruling that “communication failure is undoubtedly negligent but falls short of the intentional behavior expected under Rule 37(e)(2)”.

Nonetheless, the Court “grant[ed] plaintiffs’ motion for sanctions because the government destroyed relevant evidence that it had a duty to preserve” and directed the plaintiffs to “file a motion, appropriately supported, seeking a recovery of its costs and fees related to the motion for sanctions and with respect to discovery prompted by the destruction of evidence” and indicated it would “defer until summary judgment or trial the application of the evidentiary implications of this ruling.”

So, what do you think?  Do you think the court ruled correctly on the intent to deprive standard for Rule 37(e)(2) in this case?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was last Tuesday, part two was last Thursday and part three was Monday, here is the fourth part.

Lack of Competence Challenges

The next most popular choice for plaintiff eDiscovery pain points was lack of competence. This point was reflected in several different ways. Craig Ball stated it most directly when he called it “the big one” and noted the failings in the Plaintiffs’ bar by saying:

“Plaintiffs’ lawyers have been slow to integrate eDiscovery into their practices, so few plaintiffs’ lawyers are conversant in the argot and processes of eDiscovery.  This isn’t a slam.  Defense lawyers can call on resources unavailable to plaintiffs’ lawyers.  A defense firm will have an eDiscovery specialist or practice group to guide them and may be able to draw on resources supplied by an insurance carrier or the client’s IT staff and the client’s in-house eDiscovery workflows, tools and teams.  How many plaintiffs’ lawyers can responsibly delegate eDiscovery to their clients?  How many have eDiscovery specialists as full-time staffers?”

But clearly, he felt the Plaintiffs’ bar wasn’t picking up the slack in those shortcomings by becoming ESI proficient themselves. As he put it, “The answers are out there; but they’re not going to find the lawyers.  The lawyers have to look for them.”

Bob Eisenberg also felt it was an often-overlooked problem with the defense side, calling it a “… lack of eDiscovery expertise and interest …”

The answer tied most closely to competence was lack of tools and/or training.  Bob linked it to his answer on competence, saying that the lack of competence:

“… results, in many instances, in a failure to deploy, on an in house basis (as opposed to transactionally), necessary eDiscovery technical tools and over-reliance on outside expertise which can result in unnecessarily costly services when eDiscovery is required and problems arising from little or no in house expertise to oversee and assure both the validity and cost-efficiency of eDiscovery.”

Craig was quite specific as to the reason this was an issue when he termed it this way:

“Virtually no one offers eDiscovery training geared to the scale, needs and resources of plaintiffs’ lawyers. The Willie Sutton Rule applies.  Service providers, CLE providers, software developers, all tend to go where they think the money is, being the big firms and big corporations.  Providers shy away from plaintiffs’ lawyers out of fear of being blackballed by corporate clients and, understandably, because plaintiffs’ lawyers need more handholding and support.  Too, the collection, processing and review tools on the market are frequently priced out-of-reach to the solo and small firm practitioner and geared to the needs of producing parties.  Without tools and foundational training to explore ESI, plaintiffs’ lawyers can’t get closer to competence.”

The issue of protocols did have several mentions and was specifically called out by Jean and Drew.  Jean felt that too often protocols were misused, often being conflated with confidentiality or protective orders. Drew went even further and said that agreeing on an exchange protocol was too often “…like birthing a baby..”.

Ariana referenced the issue when she noted as her second issue “Data dumps in various formats without explanation or corresponding load files, select metadata, OCR, etc.”

For specific issues by an expert, Bob referred to a lack of understanding of their own internal IG systems by many defense counsel. Craig addressed what he called “shortsightedness” by Plaintiffs, which he described as their strong belief that “… if only they can get to the defendants’ ‘documents,’ they can make their case and prevail.” But as he goes on to say, “It’s not documents so much anymore; it’s data”, an observation clearly related to the competence issue.

Finally, Ariana bemoaned: “Inexperienced lawyers who choose not to reach out to those who have the experience, acumen, and wherewithal to go toe to toe with the opponent (especially if the opponent is sophisticated and/or is using a reliable service provider) will find themselves at a serious disadvantage.”

We’ll publish Part 5 – Conclusions – on Friday.

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

FTC Calling for National Data Privacy Law: Data Privacy Trends

Sure, we’ve talked about California’s Consumer Privacy Act (CCPA).  And, we’ve also noted that there are at least 15 state data privacy laws that are working their way through the legislative process.  But, is there anybody pushing for a national data privacy law?  At least one Federal agency is doing so.

According to Naked Security (FTC renews call for single federal privacy law, written by Lisa Vaas – with hat tip to Sharon Nelson and the excellent Ride the Lightning blog), the U.S. Federal Trade Commission (FTC) is again “beating the drum” for the long-discussed and much-debated national data privacy law, the lack of which keeps the country from parity with the EU and its General Data Protection Regulation (GDPR), or with the various states (including California) that are working on their own laws.

Earlier this month, FTC commissioners testified before the House Energy and Commerce subcommittee and as reported by The New York Times, they addressed how a national privacy law could regulate how big tech companies like Facebook and Google collect and handle user data.  Of course, besides consumer protection, the FTC is looking for more power. Commissioners asked Congress to strengthen the agency’s ability to police violations, asking for more resources and greater authority to impose penalties.

In February, both the House and Senate held hearings on privacy legislation, transparency about how data is collected and shared, and the stiffening of penalties for data-handling violations.  A number of lawmakers agree that we need a new, single federal privacy law and they are now considering several laws and bills, including the Data Care Act and the American Data Dissemination Act.  One senator even proposed a bill that would throw execs into jail for up to 20 years if they play “loosey-goosey” with consumer privacy.  Yeah, that’ll happen.

With the FTC in settlement talks with Facebook following its 13-month investigation into privacy violations stemming from the Cambridge Analytica privacy debacle, there are certainly plenty of reasons to pass legislation to standardize the handling of data privacy breaches.  All we have to do is to get Congress to agree on it.  Easy, right?  ;o)

So, what do you think?  Do we need a national data privacy law similar to Europe’s GDPR?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.