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eDiscoveryDaily

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, Part Three

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 and part two was last Thursday, here is the third part.

Cooperation Challenges

Now let’s turn to some of the individual responses.  As I mentioned in part two, the most popular choice for plaintiff eDiscovery pain points was cooperation. Bob Eisenberg, like several others, had an answer that bordered on the protocol issue, saying that:

“… there is, it seems, frequently, an almost cavalier attitude to understanding eDiscovery technical aspects and a lack of necessary skills in connection with the subject of forms of production, for instance. This sometimes extends to eDiscovery jurisprudence, as well and leads to inefficiencies and lack of defensibility in the production of ESI.”

Drew had a similar response in saying that the lack of cooperation was often manifested in a “hard line attitude” with a common approach by defense teams of saying that their proposal was an  “…industry preferred standard” with no room for negotiation or, alternatively, wrangling over minutiae of details such as metadata or load file separators.

Both Jean and Ariana mentioned the example of a repeated insistence on the use of search terms in the blind by Defense teams. As Ariana stated,

“Application of search terms that are unilaterally selected by and applied by opponent with production that follows without QC/validation/testing and then the inevitable erected proportionality argument by the opponent that it need do no more.”

Craig had an interesting response that seemed to address cooperation so I counted it there, when he said that,

“As well, plaintiffs’ lawyers do an abysmal job of drafting requests with the specificity and precision needed to forestall successful proportionality objections.”

Finally, both Craig and Drew had an answer that addressed motion practice, Craig with his reference to the ongoing use of outdated boilerplate pleadings by both sides and Drew with his comment regarding “an increased focus by Defense teams on arguing ‘discovery about discovery’ motions, especially with regard to 30(b)(6) depositions.”

We’ll publish Part 4 – Lack of Competence Challenges – on Wednesday.

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.

Court Establishes Search Protocol to Address Plaintiff’s Motion to Compel: eDiscovery Case Law

In Lawson v. Spirit Aerosystems, Inc., No. 18-1100-EFM-ADM (D. Kan. Apr. 26, 2019), Kansas Magistrate Judge Angel D. Mitchell granted in part and denied in part the plaintiff’s motion to compel, ordering the defendant to produce documents related to two requests and, with regard to a third request, ordering the defendant to “produce these documents to the extent that such documents are captured by the ESI search protocol.”

Case Background

This case regarded the defendant’s alleged breach of a retirement agreement with the plaintiff due to plans by an investment firm to install the plaintiff as CEO of an aircraft component manufacturer (“Arconic”) where the defendant withheld the plaintiff’s retirement benefits because the defendant claimed that he violated the non-compete provision in his retirement agreement.

In discovery, the plaintiff filed a motion to compel, seeking “the court’s intervention regarding discovery related to the “Business” of Spirit and Arconic. Specifically, Mr. Lawson asks the court to compel Spirit to produce (1) its contracts with Boeing and Airbus; (2) its antitrust filings relating to its planned acquisition of Asco Industries; (3) documents related to the aspects of Spirit’s business that Spirit alleges overlap with Arconic’s business; and (4) documents related to Spirit’s relationship with Arconic.”  At a subsequent hearing, the plaintiff clarified that he was not seeking to compel the full scope of documents sought in the original Requests for Production, but rather only the smaller subset of documents that were the subject of his motion to compel.

Judge’s Ruling

With regard to the Boeing and Airbus Contracts, Judge Mitchell granted the plaintiff’s motion “with respect to the portions of these contracts (or amendments, addenda, exhibits, schedules, data compilations, or lists) that relate to Spirit’s deliverables to Boeing and Airbus.”  And, with regard to Antitrust Filings, Judge Mitchell granted the plaintiff’s motion “with respect to the portion of these filings relating to Spirit’s business and market/marketing positioning, including the index(es) for these filings, the “4(c) documents,” and related white papers.”  He ordered the defendant to produce documents related to both categories “on or before May 7, 2019.”

With regard to Product Overlaps and Spirit’s Relationship with Arconic, Judge Mitchell granted these aspects of the motion in part and denied them in part, ordering the defendant to “produce these documents to the extent that such documents are captured by the ESI search protocol.”  That protocol was as follows:

“After consultation with the parties, the court orders the parties to comply with the following ESI search protocol:

  • By May 3, 2019, Mr. Lawson shall identify up to seven categories of documents for which it seeks ESI.
  • By May 20, 2019, for each category of documents, Spirit shall serve a list of the top three custodians most likely to have relevant ESI, from the most likely to the least likely, along with a brief explanation as to why Spirit believes each custodian will have relevant information.
  • By May 23, 2019, Mr. Lawson shall serve a list of five custodians and proposed search terms for each custodian.

 *3 • Spirit shall search the identified custodians’ ESI using these proposed search terms. Spirit shall use sampling techniques to assess whether the search has produced an unreasonably large number of non-responsive or irrelevant results and, if so, Spirit shall suggest modified search terms (e.g., different keywords, negative search restrictions, etc.) by May 30, 2019.

  • The parties shall meet and confer about search terms and try to achieve an estimated responsive hit rate of at least 85%.
  • Spirit shall produce responsive documents from the first five custodians on or before June 21, 2019.
  • Meanwhile, the parties shall begin this same process for the next five custodians. By May 30, 2019, Mr. Lawson will produce to Spirit a list of the next five custodians and proposed search terms for each custodian. If Spirit finds that the estimated responsive hit rate is not at or above 85%, Mr. Lawson shall suggest modified search terms by June 6, 2019. The court will set a deadline for Spirit to produce documents from the second set of five custodians at a later time.

If Mr. Lawson wishes to seek ESI from additional custodians beyond the ten described in this protocol, the parties are directed to contact the court for further guidance.”

Judge Mitchell also denied the plaintiff’s request to order the defendant to pay his attorneys’ fees and costs associated with the motion to compel.

So, what do you think?  Do you think the ordered responsive hit rate of 85% is reasonable?  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 Two

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 Tuesday, here is the second part.

Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys

With regard to my question regarding the top 3 pain points in plaintiffs’ eDiscovery work, I thought that the most common answer or problem would be something technical such as exchange protocols and/or load files.  But the clear winner was actually cooperation. The issue of protocols came in behind that along with competence, followed by lack of tools.  After that each of the people responding had an answer somewhat unique to themselves.

Here are the actual answers from each of the experts regarding the top 3 pain points for plaintiffs:

  • Craig: Short Sightedness, Competence, No tools/training
  • Bob: Cavalier Attitude, No knowledge of IG, Lack of tools
  • Drew: Cooperation, Protocols, Motion practice
  • Jean: Producing party issues, Protocols, Search terms
  • Ariana: Competence, Data Dumps, Search terms

Before I look at each of the responses, I should note that Craig Ball had a very insightful overview about the general differences between plaintiff and defense firms in eDiscovery.

“The challenges faced by plaintiffs’ lawyers confronted by eDiscovery flow from structural differences in practice.  Plaintiffs’ lawyers operate as small firms and solos who finance their cases and are compensated on contingency.  So, plaintiffs’ lawyers tend toward frugality (as they are spending their own money) and shy away from capital expenditures that cannot be reliably expensed against the matter. Plaintiffs’ lawyers tend not to possess (or need) the costly in-house IT operations of large defense firms and, crucially, plaintiffs’ lawyers don’t have large support staffs for IT and litigation support because the cost of same can’t be spread across hundreds or thousands of lawyers.”

“Without in-house eDiscovery teams at the ready, plaintiffs’ lawyers are more apt to “wing it” or seek expertise only when obliged to do so on an ad hoc basis.”

We’ll publish Part 3 – Cooperation Challenges – next Monday.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held tonight(!) at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets – it’s not too late!  You can even buy tickets at the door!  And, remember, it’s for a great cause.

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.

Are You Making Enough Money as an eDiscovery Professional?: eDiscovery Trends

Geez, if that blog post title doesn’t get your attention, I don’t know what will.  ;o)  The answer is: of course not!  But, how do you demonstrate to your boss that you deserve a raise?  Leave to Rob Robinson and another “mashup” to give you the data you need to make your point!

In his excellent Complex Discovery blog, Rob has just published a 2019 Legal Technology Salary Mashup.  As Rob notes, “the 2019 Legal Technology Salary Mashup shares an aggregation of general salary data points from publicly available research, reports, and industry observations that may be beneficial for use by legal technology leaders as they source and staff talent to support their data discovery and legal discovery business objectives… While not all-inclusive of roles, locations, and data sources, [it] represents one interpretation of publicly available salary information and is organized and presented through the lens of twenty-seven organizational roles, a national salary average, and four regionalized salary adjustments.”  Those regions are West (SF), Southwest (Austin), Midwest (Chicago) and East (NYC).

The organizational roles range from eDiscovery Document Coder (at a US baseline of $51,000) all the way up to Director of Information Technology ($240,000).  Roles include Developer, Product Manager and Project Manager (two tier levels for each of those positions), eDiscovery Sales Manager, eDiscovery Consultant, Marketing Director, Forensic Analyst/Specialist, even Data Scientist.  A comprehensive list.

Rob uses publicly available content from several sources to arrive at the “mashup”:

  • Builtin.com
  • Comparably.com
  • Dice.com
  • ESP Legal
  • Robert Half Legal
  • TechCrunch
  • The Cowen Group
  • The U.S. Government: Social Security Administration
  • TRU Staffing Partners
  • Industry Observer Estimations (Multiple Observers)

So, if you have one of these roles in your organization and you’re wondering how your pay stacks up to others in the industry throughout the country, you can check that out here.  You might find that it’s time to go hit up the boss for a raise!

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held May 16th (that’s tomorrow!) at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets – it’s not too late!  Remember, it’s for a great cause.

So, what do you think?  Are you getting paid what you deserve?  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.

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys

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.  Here’s the first part.

Introduction

Approximately 2/3 of my consulting practice revolves around issues with ESI production. Much of that work involves asymmetrical cases where one side, typically corporate defendants, has the vast majority of discovery. And since my experience is not untypical, what we see in eDiscovery practice is a heavy focus in the eDiscovery world on defense strategy, both in actual practice and educational conferences.

But what about strategy for the Plaintiff’s bar? Do they have different even dramatically different needs simply because they have less ESI?  In discussing this article, I was asked the following questions which we will consider below:

  • 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?
  • 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?
  • Are plaintiffs more motivated to request native files than defendants because they are more invested in using the metadata?
  • 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?

To research this issue, I decided to begin by asking several attorneys with Plaintiffs’ side experience, past and present, the following question, “What would you say are your top 3 pain points in plaintiffs’ eDiscovery work?”

My query went to the following attorneys:

  • Craig Ball, well known consultant, ESI expert, Special Master, former plaintiffs’ attorney and author of the Ball in Your Court blog;
  • Ariana Tadler, Managing Partner at Milberg Tadler Phillips Grossman LLP & Founding Principal at Meta-e Discover
  • Bob Eisenberg, Director, eDiscovery & Information Governance at Larson Security LLC and Program Director at the Cleveland-Marshall College of Law (CMLaw) eDiscovery Professional Certificate Program
  • Drew Ashby, Wrongful Death and Catastrophic Injury Trial Attorney at The Cooper Firm
  • Jean Martin, head of the Morgan & Morgan Complex Litigation Group in Wilmington, North Carolina

In this paper, we will take a look at their responses and comments regarding the biggest eDiscovery challenges facing plaintiff’s attorneys, as follows:

  1. Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys
  2. Cooperation Challenges
  3. Lack of Competence Challenges
  4. Conclusions

We’ll publish Part 2 – Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys – on Thursday.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held this Thursday, May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

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.

Why Do Hackers Hack? It’s About the Money, Apparently: Cybersecurity Trends

Big surprise there, right?  So says the 2019 Verizon Data Breach Investigations Report (DBIR), which analyzes the reported cybersecurity and data breach incidents for the year.  According to this year’s report, senior C-level executives are 12 times more likely to be the target of social engineering attacks, and 9 times more likely to be the target of social breaches than in previous years, with financial motivation the key driver in these attacks.

Many of the attacks on C-level executives are phishing attacks, often where the hackers pose as the CEO, eventually asking for a financial transfer to be conducted to a certain account (I wrote about an attempt I received earlier this year).  As I wrote in that article, marking emails coming from an external source with an “*** External Email ***” marker inserted into the received email has helped us at CloudNine identify those phishing instances.

As always, this year’s report has some interesting findings.  Here are some of them from the 78-page PDF report:

  • They are reporting on over 41,686 incidents and 2,013 confirmed data breaches, both numbers were down this year from last year;
  • 69% of reported breaches were perpetrated by outsiders, 34% by internal actors (last year, the ratio was 73%-28%);
  • 39% of breaches were carried out by organized criminal groups, down 11% from last year;
  • 23% of breaches involved actors identified as nation-state or state-affiliated, up 11% from last year;
  • Who was affected? 16% were breaches of public sector entities, 15% of breaches affected healthcare organizations, 10% of breaches involved the financial industry and 43% of victims are categorized as small businesses.  While that is the highest category, it is 15% lower than last year.
  • How do they get you? 52% of breaches featured hacking, 33% were social attacks (nearly double last year’s 17%), 28% included malware, 21% of breaches had errors as causal events, 15% involved misuse by authorized users and 4% of breaches involved physical actions.
  • Also, 71% of breaches were financially motivated, 25% of breaches were motivated by the gain of strategic advantage (espionage), 32% of breaches involved phishing, 29% of breaches involved use of stolen credentials and 56% of breaches took months or longer to discover. While that number seems remarkable, it is 12% down from last year’s 68%.

As always, the report is chock full of graphics and statistics which makes it easier to read than the size of the report indicates and covers everything from social attacks to ransomware to denial of service to incident classification patterns and coverage of data breaches and other incidents in several industries.

You can download a copy of the report here.  Believe it or not, this is our fifth(!) year covering the report (previous reports covered here, here, here and here).  Enjoy!

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

So, what do you think?  Have you ever experienced any data breaches, either personally or professionally?  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.

Twenty-One Points, Less Than 350 Words: eDiscovery Best Practices

Yesterday, I wrote about whether judges, like lawyers, should have an explicit technical competence requirement as well.  Leave it to Craig Ball to take a somewhat complex technical concept and break it down to the fewest possible words – i.e., in a “nutshell”.  Hey, judges!  This might be a good place to start!

As Craig notes in the latest blog post on his terrific Ball in Your Court blog (Electronic Storage in a Nutshell), he finished the E-Discovery Workbook for the 2019 Georgetown E-Discovery Training Academy (which we covered here).  The readings and exercises in the Workbook “plot the path that evidence follows from the familiar information items called ‘documents’ that lawyers use in court back to the featureless stream of binary electrical impulses common to all information stored electronically.”  While the Workbook is nearly 500 pages, the technology of eDiscovery is its centerpiece, and Craig has added a 21-point synopsis of the storage concepts, technical takeaways and vocabulary covered.

I won’t steal his thunder and go into all 21-points, but it starts from the premise that “Common law imposes a duty to preserve potentially-relevant information in anticipation of litigation” and ends with the understanding that “Hashing facilitates identification, deduplication and de-NISTing of ESI in e-discovery”.  In between are concepts about things like storage media, how computers store data, how file types and file formats are identified, different types of metadata, what happens to files when they’re deleted and how they can be recovered, and so forth.  21 points, comprised of only 349 words (that’s the count you get when you copy and paste them into Word – sans outline, at least).  And, you thought that “Cliff” was good at summarizing large amounts of text (think about it).  Sometimes, you feel like a nut!  ;o)

With regard to the Georgetown E-Discovery Training Academy, Craig notes (as he did in our blog post covering the coming Academy) that no member of the Academy faculty is compensated and that they are all volunteers.  Which is pretty incredible considering that some of them are devoting up to a week to teach eDiscovery concepts.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held next Thursday May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

So, what do you think?  Do you feel you have an adequate understanding of technical concepts like electronic storage?  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.

Should Judges Have an Explicit Technical Competence Requirement?: eDiscovery Trends

Since the American Bar Association revised the Model Rules of Professional Conduct for lawyers in 2012 to add technology competence to their duty to be competent in the law and its practice, there have been 36 states that have adopted that Model Rule.  How do I know that?  Because Bob Ambrogi keeps track of that on his LawSites blog here.  But, what about judges?  Shouldn’t they have an explicit technical competence requirement as well?

As Bob notes in his latest article in Above the Law (It Is Time To Extend The Duty Of Tech Competence To Judges), it was 2012 when the ABA amended Comment 8 to Model Rule 1.1, which pertains to competence, to say that lawyers have a responsibility to keep abreast of changes in law and practice, “including the benefits and risks associated with relevant technology.”  And, just as there is a model code of conduct for lawyers, there is a corollary model code of conduct for judges. That code, however, contains no parallel duty of technology competence for judges, at least not explicitly. And, despite the fact that most states also have codes of judicial conduct, none of those state codes appears to explicitly require technological competence for judges either.

Bob notes several ways that a judge’s responsibilities intersect with technology, including: ruling on issues of evidence and discovery involving digital sources (obviously, we’ve covered a lot of those on this blog), deciding cases involving issues of technology and ethically using technology and social media in their own professional and personal lives (we’ve touched on that too, including this recent case that we covered where a decision was reversed, based on a judge accepting a Facebook friend request from a party involved in a case in his courtroom).

Bob also cited the 2019 judges survey conducted by Exterro and EDRM/Duke Law which asked federal judges whether they are satisfied with their level of knowledge of eDiscovery technology and practices. Of the 260 judges who responded, less than a third said they require no additional training or education.  In other words, most feel they need to understand it better.

Would an explicit duty to be competent in technology help?  Well, it couldn’t hurt.  While it could be argued that there are plenty of lawyers who still don’t understand technology very well, there are certainly more that do now, possibly due (in part) to the technology ethical requirement.  At least they seem more interested in attending technology-related CLE courses than they used to be, at least the ones we offer.

Since the Model Code of Judicial Conduct was adopted by the House of Delegates of the American Bar Association in August 1990, the longest it has ever gone without being updated is about seven years (from the original Model Code to the first amended version in 1997).  Until now, where it hasn’t been updated since August 2010 (closing in on nine years since the last update).  When you consider how much technology has changed during that time, it’s amazing.  So, it’s possibly overdue for any type of update.  When they do update it next, they will hopefully address technology competence at that time.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

So, what do you think?  Do you think judges, like lawyers, need an explicit technical competence requirement as well?  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.

Here’s a Webcast to Learn How to Keep Production from Becoming Such a Big Production: eDiscovery Webcasts

Does it seem like eDiscovery production always seems to be such a big production? It doesn’t have to be. 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.  Here’s a webcast that will help you learn the steps and concepts to keep your productions from turning into a big production.

Wednesday, May 29th 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.  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 blockchain and how it can affect your job as a legal professional, this webcast is for you!

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

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.

Florida Appeals Court Upholds Ruling that Non-Party Had No Duty to Preserve Evidence: eDiscovery Case Law

In Shamrock-Shamrock, Inc. v. Remark, No. 5D18-1987 (Fla. Dist. Ct. App. Apr. 26, 2019), the District Court of Appeal of Florida, Fifth District affirmed the summary final judgment in favor of the Appellee, holding that Florida law does not impose a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation.

Case Background

In the case originally involving the Appellant’s suit against the City of Daytona Beach over zoning, the Appellee was never a party to the Appellant’s action against the City, but the Appellant’s operative complaint contained two references to the Appellee in its general allegations.  During the case, the Appellant sought to take the Appellee’s deposition and served several notices of deposition and subpoenas on the Appellee, beginning in May 2011 and ending ten months later with a sixth amended notice of taking deposition in March 2012, which was the only one that included a duces tecum request for documents to be produced at the deposition.

The Appellee’s deposition was taken in April 2012, where she testified that she had obtained a new desktop computer and had destroyed her old computer in December 2011. She did not preserve any records, documents, or emails from her old computer and did not inform anybody, including the City Attorney, that she was destroying it. Her testimony established that she destroyed her old computer after receiving the first deposition notice but before receiving the sixth amended deposition notice that for the first time included a duces tecum request.

The Appellant then filed a two-count complaint against the Appellee, alleging that she either intentionally destroyed her old computer or “negligently destroyed [it] in bad faith.” In that case, the Appellee and the Appellant filed competing motions for summary judgment regarding whether the Appellee had a duty to preserve her computer or its contents.  The Appellant argued, citing League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (Fla. 2015), that the Appellee therefore had a duty to preserve evidence based on the foreseeability of litigation, but the trial court denied the Appellant’s summary judgment motion and granted the Appellee’s. It found that there was no genuine issue of fact that the Appellee had no statutory or contractual duty to preserve evidence; thus, the Appellant had to rely on a duty imposed by a discovery request.

Judge’s Ruling

In the opinion authored by J. Sasso, the court, after considering several cases cited by the Appellant, concluded that “no Florida court has yet recognized a common law duty for third-party preservation of evidence based on the knowledge or foreseeability of litigation”.  As a result, the court stated:

“In this case, there was no statute, contract, or discovery request that would impose a clearly defined duty on Remark to preserve any potentially relevant evidence. Thus, a duty would arise only through Remark’s purported knowledge of Shamrock’s pending litigation and her anticipation that something in her control could potentially be of use to that litigation. As such, Shamrock would like us to announce that Remark owed a duty to it based on the foreseeability of litigation. Considering the traditional approach to defining legal duty, we decline to do so. Indeed, such a broad pronouncement would be tantamount to declaring a general legal duty on any nonparty witness to anticipate the needs of others’ lawsuits. There are innumerable circumstances in which a nonparty to litigation may have evidence relevant to a case and may know of its relevance. But that knowledge, by itself, should not give rise to a duty to safeguard the evidence in anticipation of litigation…While we do not speculate as to every circumstance under which a third party to litigation may have a legal duty to preserve evidence, we hold that the trial court properly determined here that Remark did not owe a legal duty to Shamrock. The summary judgment in favor of Remark is affirmed.”

So, what do you think?  Would the decision be different in other jurisdictions?  Should it be different?  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.