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eDiscoveryDaily

No Sanctions for Failing to Preserve Videos and Photos of Prisoner Accident: eDiscovery Case Law

In Hernandez v. Tulare Cnty. Correction Center, et al., No. 1:16-cv-00413-EPG (PC) (E.D. Cal. Feb. 8, 2018), the California Magistrate Judge denied the plaintiff’s motion for sanctions, ruling that the defendants did not act with the intent to deprive there was no prejudice to the plaintiff from loss of videos and photos of an accident suffered by the plaintiff, a state prisoner at the defendant’s correctional facility.

Case Background

In this case, the plaintiff tripped and fell when going through an x-ray scanning machine while shackled, suffering injuries – as a result, he filed a personal injury lawsuit against the defendants.  In August 2017, the plaintiff filed a motion to compel claiming that Tulare County failed to preserve relevant videos as well as photos (stored on a memory card) of the accident.  In a discovery hearing held in September 2017, defendant’s counsel confirmed that relevant ESI had, in fact, been mistakenly deleted by Tulare County officials and could not be replaced. The motion to compel was denied because there was nothing to produce and the plaintiff was instructed on the procedure to file a motion for sanctions pursuant to Rule 37(e) of the Federal Rules of Civil Procedure.  He filed the motion for sanctions a few days later, requesting monetary sanctions and entry of default judgment based upon intentional deprivation of relevant evidence and serious prejudice suffered to his case that cannot be cured.  Defendant Tulare County filed a response in opposition arguing that the loss of the ESI was inadvertent and did not prejudice the plaintiff.

Judge’s Ruling

Noting that Subdivision (e)(1) of Fed. R. Civ. P. 37(e) applies only “upon finding prejudice to another party from loss of the information” and that Subdivision (e)(2) applies “only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation”, the court proceeded to consider those two factors with respect to the plaintiff’s motion.

With regard to the intent to deprive consideration, the Court stated: “While the Court is troubled by the the failure to preserve the relevant video, there is no indication from the evidence in the record that Tulare County acted with intent to deprive Plaintiff of use of the video in this case. Upon consideration of the evidence in the record, it appears that this failure was a result of Tulare County either being misinformed about the relevant scope of this litigation or that the staff responsible for the preservation were poorly trained. However, the record does not contain any evidence suggesting that the failure to preserve the video was a result of bad faith or intent to deprive.”

With regard to the claim of prejudice suffered, the Court noted that “Tulare County does not dispute that: 1) Plaintiff was in shackles and other detainees were not; 2) Plaintiff tripped and fell when stepping onto the platform of the body scanner; or 3) others assisted Plaintiff to his feet after he fell.”  The Court also noted that “the video surveillance in question does not capture sound so the footage would not have been helpful regarding Plaintiff’s allegations that he informed correctional staff about his disability and the information was ignored”, that “Tulare County has produced relevant documents in this case, including photos of Plaintiff’s injuries” and “Plaintiff has also located eye-witnesses of the April 21, 2015 incident, who have reportedly agreed to provide testimony in support of his case.”  As a result, the Court ruled that the plaintiff was not prejudiced by loss of the information and denied the motion for sanctions.

So, what do you think?  Should the defendants have received at least some level of sanctions?  Please share any comments you might have or if you’d like to know more about a particular topic.

February 19 has always been an important day to me, as this was my dad’s birthday (he would have been 89 today) and it’s my wife Paige’s birthday now!  Happy birthday, honey!

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.

For a More Complete and Accurate Review, Be Persistent: eDiscovery Best Practices

Manual document review can be prone to error.  It’s easy to miss highly relevant documents or privileged documents if you fail to spot the terms that cause them to be identified as highly relevant documents or privileged.  To help spot those terms, you have to be “persistent”.  And, there’s a new review of CloudNine that you might want to check out!

By “persistent”, I’m talking about persistent highlighting, which is the topic for this week’s eDiscovery Tech Tip of the Week (see what I did there?).  :o)  Let’s face it: Failing to spot highly relevant, hot or privilege terms during document review can lead to important documents being missed or inadvertent disclosure of privileged information.  Persistent highlighting enables these important terms to be always highlighted – regardless of search criteria – enabling them to be more easily spotted during review, which improves the quality of the review process.

When a review platform offers persistent highlighting, there is typically an area where you can identify the terms that you want to always be highlighted.  Once you build that list, those terms will then always be highlighted anytime you review a document containing them, generally in a color different than the highlight color used for highlighting retrieved search terms.

Persistent highlighting can help improve the accuracy and completeness of your review and can help reduce potential inadvertent disclosures of privileged information.  To see an example of how Persistent Highlighting is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

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When evaluating an eDiscovery platform, it’s important to check out reviews of the platform so that you can gain from other perspectives on what those people like about a platform and where there are opportunities for improvement.  As we discussed previously, sites like Capterra, G2 Crowd and Gartner Peer Insights enable you to learn about actual client experiences with the platform.  And, earlier this month, we covered this free Buyer’s Guide, which reviews several eDiscovery solutions, including CloudNine, in a variety of product categories.

Now, here’s a new review of our CloudNine platform by industry thought leader Tom O’Connor.  As you may know, Tom is a long time consultant in the industry and also does some work with CloudNine, as well as participating on our webcasts with me (which has been great fun!) and writing articles.  Now, Tom has written a review of our platform that covers the full range of features, while also identifying some features he would like to see added.  So, I guess I can’t retire yet?  Thanks a lot, Tom!  ;o)  Anyway, here is a link to Tom’s review of CloudNine for your consideration.

So, what do you think?  Do you use persistent highlighting in your review processes?  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.

“Master” the Love – Today and on February 28th: eDiscovery Trends

Happy Valentine’s Day!  Hope you’re all feeling the love today!  Speaking of feeling the love, we’re only two weeks away from the first event of the year at The Master’s Conference in Dallas!

The Master’s Conference brings together leading experts and professionals from law firms, corporations and the bench to develop strategies, practices and resources for managing eDiscovery and the information life cycle.  This year’s Dallas event covers topics ranging from InfoGov to investigations to machine learning to data discovery to cybersecurity and even blockchain(!), among other things.  Here’s a link to the full agenda.

The event will be held on Wednesday, February 28th at the offices of Thompson & Knight LLP, 1722 Routh St Suite 1500, Dallas, TX 75201.  Registration begins at 8am, with sessions starting right after that, at 8:45am.

CloudNine will be sponsoring the session Investigate This! eDiscovery Is Not Just for Litigation Anymore at 8:45pm that day.  I will be participating in a panel discussion that is moderated by Kevin Clark, Litigation Support Manager at Thompson & Knight (and gracious host for the event) and includes James Lary, Forensic Technology & Discovery Services Manager with Ernst & Young, Jeff Teso, Managing Director with Alvarez & Marsal and Dave Rogers, Director at PricewaterhouseCoopers and Adjunct Professor at SMU Cox School of Business.  We’ll be sharing experiences and providing examples of the use of eDiscovery technology and best practices in support of investigations.  eDiscovery is not just for litigation anymore!

Click here to register for the conference.  If you do so today, you can save up to $200 to attend!  Hurry!

 

Of course, the one I’m really feeling the love for today is my wife Paige – Happy Valentine’s Day, honey!  I love you!  ♥♥♥♥♥

So, what do you think?  Are you going to be in the Dallas area on February 28?  If so, 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.

Are Cloud Companies Moving Away from Pricing Transparency?: eDiscovery Trends

Last May, I wrote a post asking if pricing transparency is finally happening in eDiscovery.  Here’s an article where the trend seems to be reversing – at least for Software-as-a-Service (SaaS, aka cloud) companies in general.  And, what the heck is a SaaS “unicorn”?

In his article on OpenView – Why SaaS Companies Are Moving Away From Pricing Transparency (And Why That’s a Bad Thing), by Kyle Poyar (hat tip to Rob Robinson’s Complex Discovery blog for initial coverage of the article), the author compared his findings from June 2016 to his findings from November 2017 for private SaaS “unicorns” regarding price transparency.

What Poyar found was that more than half of private SaaS unicorns (55%) were publishing their pricing online for the world to see in June 2016 (as opposed to only 28% of public SaaS companies).  However, in November 2017, he revisited the private SaaS unicorns that he had previously analyzed and found that only 47% publish their pricing, an 8% drop over a year and a half.  Poyar took a look at one of those sites at three different intervals – June 2014 (when their pricing was not published), May 2016 (when it was) and January 2018 (when it wasn’t again).  When looking at data for new SaaS unicorns, Poyar found that only “a measly” 21% of those publish pricing.  So, taken together, just 33% of SaaS unicorns of the 66 he studied currently publish their pricing.

Poyar discusses potential reasons for the shift away from pricing transparency (which Rob covers on his blog).  He also identifies three reasons why they should publish pricing, as follows:

  1. SaaS companies can’t hide anymore: Buyers are almost always going to search “insert category” and “cost” or “price.” If they can’t find that information on a company’s site, they will go elsewhere. The emergence of third party review sites like G2 Crowd, Capterra, Quora and Siftery increasingly put pricing information into the public domain. Wouldn’t you rather showcase that information on your own terms as opposed to being cut out of the buyer journey?
  2. SaaS companies need to reorient their brands around transparency: Buyers are doing more and more research about vendors before they get in touch with a sales rep. The role of the modern sales rep is going to be more similar to that of an expert or consultant, rather than someone “selling” their products at all costs. To win in this environment, SaaS companies need to establish brands that emphasize trust, helpfulness, and, you guessed it, transparency.
  3. SaaS companies need to accelerate their sales cycles: Most SaaS startups with an inside sales model can’t waste precious resources on less serious, unqualified prospects or those only looking to be educated on the market. Wasted sales and marketing resources leads to poor unit economics, making it hard for a company to attract future funding. Transparent pricing acts as an important qualification gate that allows sales reps to focus their time on serious buyers.

All excellent points.  From an eDiscovery perspective, I noted in last year’s post how Craig Ball’s EDna challenge from 2016 promoted an “apples to apples” comparison on pricing and that’s key.  But, do eDiscovery cloud solution providers as a general rule publish their pricing?  Feel free to check for yourself – I can only speak to how CloudNine (shameless plug warning!) does it.  We do publish our pricing and what our pricing covers and that info is available here.  Hopefully, we’ll see a trend toward more price transparency in our industry as I certainly think it’s what the clients would like to see.

BTW, a SaaS “unicorn” is a SaaS company with a billion dollar valuation.  Now you know!  CloudNine isn’t quite there – yet.  :o)

So, what do you think?  How important is pricing transparency to you when considering solution alternatives?  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.

Befuddled by BYOD? The Sedona Conference Has a New Set of Principles to Guide You: eDiscovery Best Practices

Many organizations are permitting (or even encouraging) their employees to use their own personal devices to access, create, and manage company related information – a practice commonly referred to as Bring Your Own Device (BYOD).  But, how can those organizations effectively manage those BYOD devices to meet their discovery obligations?  To help with that issue, The Sedona Conference® (TSC) has published an initial Public Comment Version of a Commentary to help.

In late January, TSC and its Working Group 1 on Electronic Document Retention and Production (WG1) rolled out the Public Comment version of its Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations.  The Commentary is designed to help organizations develop and implement workable – and legally defensible – BYOD policies and practices. This Commentary also addresses how creating and storing an organization’s information on devices owned by employees impacts the organization’s discovery obligations.  It focuses specifically to mobile devices that employees “bring” to the workplace (not on other “BYO” type programs) and does not specifically address programs where the employer provides the mobile device.

The Commentary begins with five principles related to the use of BYOD programs and continues with commentary for each.  Here are the five principles:

  • Principle 1: Organizations should consider their business needs and objectives, their legal rights and obligations, and the rights and expectations of their employees when deciding whether to allow, or even require, BYOD.
  • Principle 2: An organization’s BYOD program should help achieve its business objectives while also protecting both business and personal information from unauthorized access, disclosure, and use.
  • Principle 3: Employee-owned devices that contain unique, relevant ESI should be considered sources for discovery.
  • Principle 4: An organization’s BYOD policy and practices should minimize the storage of––and facilitate the preservation and collection of––unique, relevant ESI from BYOD devices.
  • Principle 5: Employee-owned devices that do not contain unique, relevant ESI need not be considered sources for discovery.

The Commentary weighs in at a tidy 40 page PDF file, which includes a couple of appendices.  So, it’s a fairly light read, at least by TSC standards.  :o)

TSC is encouraging public comment on the Commentary on BYOD, which can be downloaded free from their website here (whether you’re a TSC member or not). They encourage Working Group Series members and others to spread the word and share the link (you’re welcome!) so they can get comments in before the public comment period closes on March 26. Questions and comments may be sent to comments@sedonaconference.org.  So, you have a chance to be heard!

Speaking of mobile devices, I’m excited to be speaking this year for the first time at the University of Florida Law E-Discovery Conference on March 29.  I’m on a panel discussion in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig Ball, Kelly Twigger, and with The Honorable Amanda Arnold Sansone, Magistrate Judge in Florida, moderating.  As always, the conference will be conducted in Gainesville, FL (as well as being livestreamed), with CLE-accredited sessions all day from 8am to 5:30pm ET, with an all-star collection of speakers.  I’ll have more to say about the conference as we get closer to it.  Click here to register!

So, what do you think?  Does your organization have a BYOD policy?  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.

Glitch in the Matrix – The Vital Role of Communication Between All Stakeholders in eDiscovery: eDiscovery Best Practices

Editor’s Note: Jim Gill’s writing about eDiscovery and Data Management has been twice recognized with JD Supra Reader’s Choice Awards and he holds an MFA in Creative Writing from Southern Illinois University, Carbondale.  Before working in eDiscovery, Jim taught college writing at a number of institutions and his creative work has been published in numerous national literary journals, as well as being nominated for a Pushcart Prize.

Jim’s post below highlights the importance of communications between all stakeholders in the discovery process.  Here’s an example of what can happen when communications break down.  For more information on how CloudNine manages communications for our clients, contact us at info@cloudnine.com.

But first, this week’s eDiscovery Tech Tip of the Week is about Filtering Your Document Collection.  Some attorneys like to load data and get started right away with searching, before they cull out duplicates and clearly non-responsive files.  This can drive up review and production costs and lead to inconsistency in review.  If data for several custodians in an organization is collected for review, many of them will have the same files and emails, especially when those emails are sent to large groups or all employees, so there’s generally no need to review them more than once.  Every file has a digital fingerprint known as a HASH value and all files with the same content in the same format will have the same HASH value, so you can set aside all of the duplicates after the first file.  Domain categorization and relevant date range identification are other areas where you can effectively cull before searching.  The ability to select specific clearly non-responsive domains or collected files outside of the relevant date range and put them quickly into the non-responsive “bucket” can save a lot of time in review and production.

The good news is that the process of filtering that redundant or clearly non-responsive ESI today can be largely automated.  To see an example of how Filtering Your Document Collection is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

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In an article by Morgan Chalfant at The Hill posted on January 25th, it was reported that text messages between two FBI employees that were sought by Congressional and Justice Department investigators had not been preserved due to a “glitch” that not only affected the messages in question, but nearly 3,500 FBI devices, “close to 10 percent of cell phones used by bureau employees”.

In this day and age, where data hacks and cyber-espionage are no longer the realm of near-future science fiction, cries of a conspiracy were quickly sounded. But the reality, according to FBI officials, was “that the messages were not preserved as a result of misconfiguration issues related to software upgrades of FBI-provided Samsung 5 mobile phones that conflicted with the bureau’s archiving efforts.”

As more and more tools and applications move to cloud-based platforms, particular awareness has to be taken when it comes to automatic system updates. Last year, when it seemed everyone in eDiscovery was moving or planning to move to Microsoft Office 365, one thing that users noted (particularly those in legal departments) was that they weren’t notified about the updates, either because IT didn’t communicate the updates to users in Legal, or the users in Legal didn’t notice when IT did communicate the updates. Some of these early O365 updates would change settings back to a default, resulting in problems related to retention and preservation. It seems a similar issue is what happened with the FBI’s phones.

This brings up a couple of challenges that are common in eDiscovery:

  • First, the need for clear communication between all stakeholders involved in the process — Legal, IT, Lit Support, Project Managers, Security, Business Units, etc. Information moves fast enough as it is, and when you add elements like automatic updates to the mix, it’s extremely difficult to keep up. Most people don’t track when the apps on their phone update. You might notice it happening via a push notification, but unless the app stops working the same way or a new feature or interface pops up, we simply move on. Apparently, even the FBI does this. So this is why it’s important to create communication protocols surrounding technology changes ahead of time, so that things like this aren’t missed.
  • And second, the need for having a good working relationship with software vendors / providers. More and more, the role of industry third-parties can provide insight, training, and support for the smooth operation of your team’s information governance and eDiscovery operations. With software platforms moving to the cloud, vendors have more and more control over your organization’s processes (which isn’t a bad thing, because they most likely have more technical knowledge on making things run successfully). If you can find a vendor that understands your organization’s needs and is willing to develop a solid working relationship with your eDiscovery team, then when glitches do arise, it’s much easier to handle them.

When things go wrong in a big way, it’s tempting to blame it on the technology (or even better the unknown wizards behind the curtain who created it). Which is all the more reason why legal teams need to incorporate experts who understand the technology and how it affects (or could potentially affect) operations, and then foster regular and open communications with all parties involved, so that everyone knows how to avoid potential problems, or when they do, there are policies and protocols in place for quickly bringing things back in working order.

So, what do you think?  How do you manage communications with stakeholders in 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.

Court Denies Plaintiffs’ Request to Email All Defendant Employees as “Simply Unreasonable”: eDiscovery Case Law

In Firefighters’ Ret. Sys., et al. v. Citco Grp. Ltd., et al., No. 13-373-SDD-EWD (M.D. La. Jan. 3, 2018), Louisiana Magistrate Judge Erin Wilder-Doomes denied the plaintiffs’ renewed motion to compel after the parties previously agreed upon search terms and document custodians, stating that the plaintiffs’ request to “email everyone in every Citco entity to ask whether anyone employed by any Citco entity has knowledge relevant to this litigation, and thereafter require the Citco Defendants to conduct additional electronic and hard copy searches for documents” was “simply unreasonable” and would be “unduly burdensome”.

Case Background

In this case regarding claims of unjust enrichment and breach of contract (among others) regarding fund shares purchased for $100 million that ultimately turned out to be worthless, the plaintiffs previously filed a Motion to Compel seeking an order compelling Citco Group to respond to multiple interrogatories and requests for production based upon the knowledge of entities controlled by Citco Group and/or possession of documents by entities controlled by the Citco Group.  In response, the Citco Defendants argued that granting Plaintiffs’ motion would ignore the substantial discovery efforts already made in the case (as the parties had previously agreed to a scope of 56 search terms to be applied against 21 custodians) and would be incompatible with the proportionality requirement of the federal rules.

The Initial Motion to Compel was discussed during an October 2017 status conference with the parties, and the court found that Plaintiffs’ concerns should be addressed with a 30(b)(6) deposition of defendant’s corporate counsel to describe the process for locating responsive documents (and denied the Initial Motion without prejudice to re-urging following the corporate deposition).  After the 30(b)(6) deposition, the plaintiffs filed a Renewed Motion to Compel, contending that the defendants’ responses to these interrogatories “were incomplete and inaccurate” and resulted in “a flawed list of custodians” and a “flawed electronic search for documents.”  They also contended that the defendants’ 30(b)(6) deponent confirmed that “one email can be sent to everyone in the Citco organization and ask them limited questions about their personal knowledge of the issues in this lawsuit”.  The defendants objected, asserting that any additional searches (beyond the previously agreed scope) based on an e-mail questionnaire to all employees “would be disproportional to the needs of this case”.  A December 2017 status conference failed to resolve the dispute.

Judge’s Ruling

Judge Wilder-Doomes reiterated that “Based on the parties’ correspondence, the parties agreed upon 56 search terms and…21 document custodians”.  She also observed that “Plaintiffs still have not explained why the custodians and search terms used were unreasonable. Moreover, although the Citco Defendants have been willing to add additional search terms during the course of this litigation, and note in opposition to the Renewed Motion to Compel that they are ‘prepared to discuss with Plaintiffs additional document custodians (if Plaintiffs identify any),’ Plaintiffs failed to identify proposed additional custodians in either their Renewed Motion to Compel or during the December 12, 2017 status conference.”

In denying the Renewed Motion to Compel, Judge Wilder-Doomes stated: “Instead, Plaintiffs seek permission from this court to email everyone in every Citco entity to ask whether anyone employed by any Citco entity has knowledge relevant to this litigation, and thereafter require the Citco Defendants to conduct additional electronic and hard copy searches for documents. That is simply unreasonable, and in essence is a request for the Citco Defendants to ‘go back to square one’ of their document production efforts despite the parties’ agreement regarding custodians and search terms, the Citco Defendants apparent willingness to consider additional custodians and search terms, and Plaintiffs failure to identify or explain the necessity of any additional custodians or search terms. Further, such a large scale search raises proportionality concerns and, especially in light of the parties’ previous agreements and efforts, would be unduly burdensome.”

So, what do you think?  Was this request a “fishing expedition” by the plaintiffs?  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.

Thoughts About Legaltech New York 2018: eDiscovery Trends

We’ve completed another LegalTech New York (LTNY) (a subset of “Legalweek”).  What did attendees at the conference think about this year’s show?  Let’s take a look.

As I’ve done the past couple of years, I reached out to several attendees (some of whom I met with during the show) to get their thoughts and impressions of this year’s show.  As always, these should be taken as their personal opinions and observations regarding the show, not those of their employer or clients.  With that in mind, here is what they had to say:

Shawn Gaines, Director of Product and Community Marketing at Relativity: “Although every conversation I had at the show seemed to hit on the fact that the show itself seemed much cozier than in the past—exemplified by the consolidated expo hall—there was still plenty of energy in the places the show really happens: conference rooms and meeting suites, restaurants and happy hours, and even some local venues.  Beyond that, conversations tended to turn away from typical e-discovery topics to the innovations coming out on top of it—the folks doing more with their existing platforms, developing new applications and integrations to make the best use of what they have.”

Tom O’Connor, Director at Gulf Coast Legal Technology Center: “Attendance was clearly down and the number of exhibitors was spread out over half a dozen local hotels.  Educational content continues to be predominantly infomercials for major sponsors. Main benefit to me was as a B2B forum and that aspect was very good.”

Ralph Losey, E-Discovery Lawyer at Jackson Lewis, P.C. and Author of E-Discovery Team: “LegalTech seems to have outgrown its old home at the Hilton. They should find a bigger space elsewhere.”

Rob Robinson, Data and Legal Discovery Technologist, ComplexDiscovery Blog and CloudNine: “On the eDiscovery front, Legaltech continues to be a galvanizing and polarizing conference at the same time. Galvanizing in the fact of the idealistic yet tangible excitement generated during the event by the sharing and championing of new technologies and approaches to solving eDiscovery challenges. Polarizing in the fact that when viewed through the lens of event participation, the gap between the well-funded and well-connected companies and commentators and those not as well financed or connected appears to be increasing. This increasing gap prevents many great products and points of view from breaking through the noise of paid advertising, sponsorships, and relationships and may be one of the contributing factors to the perceived decrease in status and the actual decrease in provider participation in one of the most successful event franchises in the history of eDiscovery. The benefits of galvanization may continue to outweigh the detriments of polarization, but not by as much as in past years.”

Michele C.S. Lange, Freelance writer and attorney: “If you left Legalweek and learned nothing about machine learning, deep learning or supervised learning, you attended some other random conference. This was the year to dig deep on AI.”

Jason R. Baron, Of Counsel at Drinker Biddle & Reath LLP: “I was heartened to see “AI” being discussed everywhere one travelled at Legaltech this year.  The movement toward embracing smarter analytics in e-discovery (predictive coding, TAR, etc.) now looks to be a “feature” of a more comprehensive discussion we are engaged in as to how the law should embrace all manner of artificial intelligence in connection with the Internet of Things and beyond.    I also appreciated more sophisticated attention being paid to ethical aspects of the coming AI revolution, in sessions such as the one moderated by Martin Tully and including Ralph Losey and Shannon Kirk discussing E-Discovery in the Year 2048: What the Future Holds.  In my mind, however, we need not wait until 2048 to discuss whether public and private sector institutions should be creating algorithmic review boards (similar to existing IRBs for human subjects) to review potential bias and discrimination in the use of algorithmic inputs, or other novel issues involving big data aggregation and surveillance.  The future is coming faster than anyone in the “ESI” universe of ediscovery ever imagined, as this year at Legaltech made abundantly clear.

David Horrigan, Discovery Counsel & Legal Education Director at Relativity: “Not surprisingly, just about every poll will put “artificial intelligence” at the top of the Legalweek 18 takeaway list, but it was a different conversation this time. The educational sessions did a good job of taking the discussions beyond the HAL 9000 nightmare of the robots taking all jobs, bitcoins, and lives as we know them. There were efforts made to define artificial intelligence—not unlike those erstwhile attempts to define “information governance”—but there were also practical privacy analyses, such as the HIPAA considerations of robots dispensing medications. Overall, the conversation went beyond fear and loathing to embracing and regulating.”

Craig Ball, eDiscovery Thought Leader and Author of Ball in Your Court blog: “LegalTech is like a party that keeps going long after the host has gone to bed.  Its deep value lies in the conversations in the halls, balls and barroom stalls of Midtown West. “What are you working on?”  “Have you heard about…?”  “We bought their product and it was a disaster/delight.”  The Hilton’s still the hub, but the action’s in its orbit.  New York supplies the juice.”

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As for my own thoughts, the conference seemed smaller yet again this year, especially in the exhibit hall.  One colleague pointed out to me that the number of exhibitors (not companies that were listed as “LegalCIO” or “Business of Law” participants) was down again this year.  Industry consolidation or lack of willingness of providers to participate or both?  You decide.  As for the sessions, I attended a handful in between meetings and they were high quality once again.  I heard some raise concerns that the sessions were mere vendor infomercials, but I didn’t see that in the ones I attended – they were good quality with knowledgeable panelists.  AI and GDPR were the topics of the year, and rightly so.

I think ALM needs to (finally) consider moving Legaltech to a new venue as much of the activity is conducted in suites in hotels like the London and Warwick.  Rob used the terms “galvanizing” and “polarizing” above and I think those terms wonderfully describe the state of the conference today.  A lot of people rarely or never make it over to the exhibit hall or the sessions.  A venue that includes plenty of breakout rooms onsite would – if the breakout rooms were priced reasonably – keep all attendees plugged into the heart of the conference instead of disbursed.  And, it could keep those vendors who currently don’t participate engaged at some level so that a $2,500 attendance fee for non-participating vendors wouldn’t be necessary.  Creative thinking is needed for Legaltech to remain among the most important conferences each year.

So, what do you think?  Did you attend this year’s Legaltech?  If so, what did you think of the conference?  Please share any comments you might have or if you’d like to know more about a particular topic.

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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.