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eDiscoveryDaily

Court Affirms Ruling in Battle Between eDiscovery Providers Over Hired Sales Agents: eDiscovery Case Law

Remember the lawsuit filed by DTI against LDiscovery and four former sales agents of DTI who were hired by LDiscovery, claiming they misappropriated trade secrets, interfered with client relationships and breached their contracts?  Last year, an opinion provided by New York District Judge Jed S. Rakoff last week detailed his rejection of all arguments by DTI that led to his denial of a motion for a preliminary injunction.  Last week, the Second Circuit affirmed the ruling, determining that there is no basis to infer that LDiscovery engaged in any wrongdoing.

An article in Bloomberg Law (E-Discovery Firm Dodges Rival’s Trade Secrets Suit, written by Michael Greene, hat tip to Rob Robinson’s Complex Discovery blog) covered last week’s ruling by the appellate court.  In its ruling, the Court stated “there appears no basis in the amended complaint from which we can plausibly infer that LDiscovery is liable for the misconduct alleged”, noting that the “amended complaint did not identify a single customer who was actually brought to LDiscovery”.  The court also noted “Nor does there appear any support for DTI’s contention that the Individual Defendants had not fully complied with their one-year non-competition covenants.”

DTI filed its lawsuit last April against four salesman (who had originally worked for Epiq prior to DTI’s acquisition of Epiq) and LDiscovery, after they resigned from DTI in January.  DTI had contended that the salesman had breached their nondisclosure covenants by failing to return two thumb drives in their possession, and that they had breached their employee non-solicitation clauses by jointly searching for new employment and also by allegedly soliciting two other DTI employees, but Judge Rakoff stated that agreement was “unenforceable insofar as it purports to prohibit at-will employees, who have yet to accept an offer of new employment, from “inducing” or even “encouraging” their coworkers to leave their present employer.”

As a result, Judge Rakoff dismissed the claims against LDiscovery and the appellate court affirmed the ruling last week.  The case is Doc. Techs., Inc. v. LDiscovery, LLC, 2018 BL 143523, 2d Cir., 17-2659-CV, 4/24/18.

So, what do you think?  How enforceable should non-compete agreements be?  As always, please share any comments you might have with us or let us know 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.

What Happens in the Internet Each Minute in 2018? More Than Ever: eDiscovery Trends

The past two years, we’ve taken a look at a terrific infographic each year that illustrated what happens within the internet in a typical minute.  2018 is a new year and it’s always fun to take a fresh look.  So, let’s take a look at what happens in an internet minute in 2018.

But first, this week’s eDiscovery Tech Tip of the Week is about Creating Fields.  Classifying documents as responsive, non-responsive or privileged and recording and tracking information about the documents during the review and production process is key to effective workflow management of the discovery process as a whole.  The easier it is to be able to create the fields you need to classify and track documents through the review and production process.

To see an example of how Creating Fields is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

As for the internet minute, this updated graphic, once again created by Lori Lewis, illustrates what happens within the internet in a typical minute in 2018.  There are a couple of different categories tracked in this graphic than last year’s, but most are the same.  Once again, the ones that are the same are all up compared to last year – some more than others (is Netflix viewing really up 3 1/2 times more than last year?).

Here is a comparison between 2017 and 2018 (we previously published the graphic for 2016 here):

Once again, I can’t vouch for the accuracy of the numbers, so take them for what it’s worth.  They say a picture says a thousand words, so consider my blog post complete for today!  :o)

So, what do you think?  How have the challenges of Big Data affected your organization?  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.

eDiscovery Privilege Review in the Trump-Cohen-Daniels Saga: eDiscovery Trends

This is not a political blog and we try not to represent any political beliefs on this blog.  But, sometimes there is an eDiscovery component to the political story and it’s interesting to cover that component.  This is one of those times.

According to Bloomberg (Cohen Prosecutors Accept Neutral Review, Using Trump’s Words, written by Bob Van Voris and David Voreacos), prosecutors probing President Donald Trump’s lawyer said they are prepared to use a neutral outsider to review documents seized this month from the home and office of Michael Cohen, which was an about-face from the government’s initial plan to scrutinize the documents itself.

In a five-page letter to the judge last Thursday, prosecutors, referencing the president’s statement that Cohen was responsible for only “a tiny, tiny little fraction” of his legal work, argued that the special master’s document review could move swiftly.  Along with Cohen’s earlier acknowledgment that he had just three legal clients this year, that may have undermined the lawyer’s claim that the seized records may contain “thousands, if not millions” of privileged communications from clients, said former federal prosecutor Renato Mariotti.

In their filing, prosecutors said they now recommend a special master process proposed by retired U.S. Magistrate Judge Frank Maas (a United States Magistrate Judge for the Southern District of New York for 17 years and a frequent speaker at various conferences about eDiscovery trends and best practices) to weed out records that might be covered by the attorney-client privilege. They had previously asked that a separate team of prosecutors be permitted to review the documents first — a procedure routinely employed in other cases involving such materials.

“We believe that using Judge Maas or another neutral retired former Magistrate Judge familiar with this electronic discovery process and with experience in ruling on issues of privilege will lead to an expeditious and fair review of the materials obtained through the judicially authorized search warrants,” prosecutors said in a letter filed shortly before a court hearing scheduled for noon last Thursday.

In a separate letter filed with the court, Maas said that as special master he could analyze potential privileged materials through one of two methods. One would involve his review of a so-called privilege log, which would list all materials that any party says might be protected, as both Trump and Cohen have urged. The other would involve Maas directly reviewing the seized material himself to determine what may be privileged.

He preferred his own review, saying “privilege logs often are virtually useless as a tool to assist a judge or master, and their preparation is expensive and can cause delay.”

Prosecutors have said their probe is focused more on Cohen’s personal business and financial dealings than his legal work. They have seized documents relating to a 2016 payment made by a company Cohen set up to adult film actress Stormy Daniels, who claims to have had a tryst with Trump in 2006.

It will be interesting to see what happens from here.  And, of course, I’m talking about from an eDiscovery perspective, of course!  :o)

So, what do you think?  Should special master review to determine privilege be based on the documents themselves or should it be based on review of privilege logs?  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.

Looking to the Future with CloudNine, Concordance and LAW PreDiscovery: eDiscovery Webcasts

CloudNine recently acquired the Concordance, LAW PreDiscovery and Early Data Analyzer platforms.  So, who is CloudNine, why did they acquire these products and what is their vision for them going forward?  If you’re an existing user of these products, now’s your chance to find out!

During the month of May, CloudNine will conduct the webcast Looking to the Future with CloudNine, Concordance and LAW PreDiscovery LIVE on three separate occasions.  In this one-hour webcast, we will provide an overview of CloudNine, the vision for our new robust suite of products and how they will extend and enhance your data and legal discovery efforts.  We’re conducting the webcast three different times to make the webcast presentation more interactive, giving existing customers of our products a chance to have their questions addressed, so you’ll want to register for one of these dates if you want to attend.  The webcast will include both a presentation and a demonstration of our CloudNine platform:

Presentation Highlights:

  • Who is CloudNine?
  • What We Do and How We Solve the Problems
  • Considerations for On-Premise, Off-Premise and Hybrid Approaches
  • What the Acquisition Means for Current On-Premise Customers
  • Looking to the Future with CloudNine Off-Premise and On-Premise Products

Demonstration Highlights:

  • CloudNine Automated Legal Hold
  • CloudNine eDiscovery Platform (Upload/Process/Review/Produce)
  • CloudNine Automated Data Preservation and Collection

The three dates for the webcast are:

  • Wednesday, May 2, 2018 (click to register here)
  • Tuesday, May 8, 2018 (click to register here)
  • Thursday, May 17, 2018 (click to register here)

All times are noon CST (1:00pm EST, 10:00am PST).

So, what do you think?  Do you use Concordance, LAW or EDA?  Then, come join us!  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 Compels Discovery in Response to Party That Was Using Outdated Rule 26 Standard: eDiscovery Case Law

In Cen Com, Inc. v. Numerex Corp., No. C17-0560 RSM, (W.D. Wash., April 11, 2018), Washington Chief District Judge Ricardo S. Martinez ruled that the Plaintiff’s refusal to comply with the Defendant’s request for discovery using specific search terms was not justified, and that the Plaintiff must “fully comply with the subpoenas that Defendants served upon them and shall produce all responsive documents in a format that is accessible/readable by Defendants.”

Case Background

A request for discovery was issued by the Defendant for the founder and owner of the Plaintiff, along with two current employees of the Plaintiff, all of whom were former employees of the Defendant. The plaintiffs objected to the subpoenas “on the basis that it was an improper attempt to obtain discovery from a party employee,” and “that the subpoena is overbroad, unduly burdensome, and that the costs outweigh the potential for acquiring relevant information.”

The Defendant also filed a motion to compel the Plaintiff to use specific electronic search terms (“attorney w/2 general” and “consent w/2 decree”) related to a 2012 consent decree that Plaintiff entered into with Washington State’s Attorney General. The Plaintiff objected to the search terms regarding the consent decree as irrelevant.

As part of a counterclaim, the Plaintiff requested sanctions against the Defendant, claiming they withheld certain documents because of a pending motion for protective order, which was later denied by the Court. However, the Plaintiff continued to seek sanctions for the time period that it alleges Defendants were not in compliance with the stipulated ESI Order.

Judge’s Ruling

In Judge Martinez’s ruling, all of the Defendants’ motions were granted. Regarding the scope and relevance of the discovery request, it was noted that the Plaintiff was basing their refusal to comply on the former FRCP Rule 26 standard and not in line with the current version of Rule 26, which states discovery must be relevant to the claim and proportional to the needs of the case, while taking into account the parties’ access to relevant information and available resources, the importance of the discovery in resolving the matter, and whether the burden or expense of discovery outweighs its likely benefit.

Additionally, under Rule 37, “The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” Here the Plaintiff failed to explain specifically why the documents are not relevant, or that a search of the documents would be unduly burdensome, and instead only made the blanket statement that the documents sought “do not concern this matter and could not lead to relevant information.”

In regard to the Plaintiff’s counterclaim, Judge Martinez denied the motion for sanctions, citing Rule 37(d)(2): “A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).”

So, what do you think?  Was the ruling correct or were the Defendant’s requests “overly burdensome”?  Please share 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.

Don’t Miss Our Webcast Today on Technology Assisted Review!: eDiscovery Webcasts

What is Technology Assisted Review (TAR)? Why don’t more lawyers use it? Find out in our webcast today!

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Getting Off the Sidelines and into the Game using Technology Assisted Review. In this one-hour webcast that’s CLE-approved in selected states, will discuss what TAR really is, when it may be appropriate to consider for your case, what challenges can impact the use of TAR and how to get started. Topics include:

  • Understanding the Goals for Retrieving Responsive ESI
  • Defining the Terminology of TAR
  • Different Forms of TAR and How They Are Used
  • Acceptance of Predictive Coding by the Courts
  • How Big Does Your Case Need to Be to use Predictive Coding?
  • Considerations for Using Predictive Coding
  • Challenges to an Effective Predictive Coding Process
  • Confirming a Successful Result with Predictive Coding
  • How to Get Started with Your First Case using Predictive Coding
  • Resources for More Information

Once again, I’ll be presenting the webcast, along with Tom O’Connor, who recently wrote an article about TAR that we covered on this 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 TAR, what it is and how to get started, this is the webcast for you!

So, what do you think?  Do you use TAR to assist in review in your cases?  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.

eDiscovery Business Confidence Takes a Major Spring Forward: eDiscovery Trends

Get it?  The Complex Discovery eDiscovery Business Confidence Survey is into its third year and the results are in for the Spring 2018 eDiscovery Business Confidence Survey!  As was the case for the 2016 Winter, Spring, Summer and Fall surveys, the 2017 Winter, Spring, Summer and Fall surveys and the 2018 Winter survey, the results for the Spring survey are published on Rob Robinson’s terrific Complex Discovery site.  How confident are individuals working in the eDiscovery ecosystem in the business of eDiscovery?  Let’s see.

As always, Rob provides a complete breakdown of the latest survey results, which you can check out here.  As I’ve done for the past few surveys, I will provide some analysis and, this year, I’ll take a look at all surveys conducted to look at trends over time.  So, this time, I will look at the results for all ten surveys.

The Spring 2018 Survey response period was initiated in March, and continued until registration of exactly 100 responses by last week.  Rob notes that this limiting of responders to 100 (or so) individuals is designed to create linearity in the number of responses for each quarterly survey.  So, in the future, if you want your voice heard, respond early!

This Survey is Consultant Heavy: For the first time ever, those who identified themselves as Consultants lead the way.  Of the types of respondents, 33% were Consultants, followed by Software and/or Services Provider (30%) and Law Firm (29%).  As always, if you count law firms as providers (they’re technically both providers and consumers), this is a very provider heavy survey (which makes perfect sense as they would be most interested in eDiscovery business confidence).  Here’s a graphical representation of the trend over the ten surveys to date:

This is the most provider heavy survey yet at 92% of total respondents!  So, how confident are providers in eDiscovery business confidence?  See below.

More Than Two Thirds of Respondents Consider Business to Be Good: Yowza!  Over two third (68%, to be exact) of respondents rated the current general business conditions for eDiscovery in their segment to be good, with 7% rating business conditions as bad.  That’s a record percentage of “good” votes.  Last quarter, those numbers were 58% and 7% respectively.  Will the positive sentiment continue?  We’ll see.  Here is the trend over the ten surveys to date:

This survey shows the highest percentage of “business is good” respondents ever by 6.2%! Spring 2016 was the previous high.  But, do respondents expect that to continue?  See below.

Revenue and Profit Expectations Six Months From Now Are Strong: Almost all respondents (94%) expect business conditions will be in their segment to be the same or better six months from now (one tick lower than last quarter’s 95%), and the percentage expecting business to be better fell six points to 50%.  Revenue (at combined 96% for the same or better) is three points higher than the last quarter.  Profit expectations (combined 86%) also rose three points from last quarter, with those expecting higher profits at an all-time high of 53%!  Here is the profits trend over the ten surveys to date:

Perhaps the weirdest results this time as both revenue and profits scored higher than general business conditions did.  Go figure.

It’s Budgetary Constraints’ Turn to Be Most Impactful to eDiscovery Business: Budgetary Constraints was the top impactful factor to the business of eDiscovery over the next six months at 22%, with Increasing Volumes of Data next up at 21%.  Data Security was close behind in third at 19% and Increasing Types of Data (16%) was fourth.  Inadequate Technology and Lack of Personnel brought up the rear at 11% each.  The graph below illustrates the distribution over the ten surveys to date:

Once again, Budgetary Constraints and Increasing Volumes of Data are the top two, but for the first time, all six factors were over 10%.  That’s a fairly even distribution.

Even Distribution Between Management and “Rank and File”: For the first time since Summer 2016, the Executive Leadership respondents (35%), Operational Management (34%) and Tactical Execution respondents (31%) were virtually even.  So, this survey reflects even input from execs, managers and “doers”.  Here’s the breakdown over the ten surveys to date:

Clearly, the variance in distribution shows that the respondents for this survey vary from quarter to quarter, so it’s not the same people giving the same answers each time.

Again, Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Check them out.

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  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.