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eDiscoveryDaily

Improving your eDiscovery Vocabulary is as Easy as 123: eDiscovery Replay

Sometimes, even blog editors need to take a vacation.  But, instead of “going dark” for the week, we thought we would re-cover some topics from the past, when we had a fraction of the readers we do now.  If it’s new to you, it’s still new, right?  Hope you enjoy!  We’ll return with new posts on Monday, August 7.

Want to be better equipped to speak the “lingo” of eDiscovery and understand what you’re saying?  Here’s a glossary that can help.

As provided via the JDSupra Business Advisor site, Electronic Discovery: Glossary of 123 Commonly Used Terms, provided by Seattle law firm Lane Powell PC, is a glossary of 123 commonly used terms to help you navigate the world of Electronic Discovery.  For those of us who have been in the industry for years, call them Terms of Endearment!

From Active Data to Zip, the glossary defines 123 total terms related to eDiscovery as well as technology in general.  You get discovery terms defined ranging from Bates Number and Chain of Custody to Redaction and Spoliation and technology terms from Cache (pronounced “cash”) and Compression to Unallocated Space and VPN (Virtual Private Network).

You can review the terms from the window on the JD Supra site or download the PDF document for reference purposes.  This list comes in handy for anyone who may need a better understanding of eDiscovery and technology or simply needs a refresher on certain terms.

I did not see definitions for all of the EDRM phases (e.g., no definitions for Identification, Collection, Analysis, Processing or Presentation) and some other terms that might be useful to define (e.g., Searching), so maybe they can eventually issue a supplemented version that has 144 defined terms.  Now, that’s gross!  :o)

Speaking of EDRM, they have their own even more extensive glossary (we covered it here last year) and you can find it (and its sub-glossaries) here.  And, if you want a glossary specific to Technology Assisted Review, here is a terrific one from Maura Grossman and Gordon Cormack.  To become more comfortable with the lingo, be sure not to “gloss” over any of these resources.  :o)

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

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.

Other Production Parameters from a Provider’s Point of View: eDiscovery Replay

Sometimes, even blog editors need to take a vacation.  But, instead of “going dark” for the week, we thought we would re-cover some topics from the past, when we had a fraction of the readers we do now.  If it’s new to you, it’s still new, right?  Hope you enjoy!  We’ll return with new posts on Monday, August 7.

Yesterday, we began to discuss some of the production parameters that CloudNine collects from our clients in order to ensure that the production includes the correct documents in the required format.  But, wait – there’s more!  Let’s take a look at some other examples of information we collect from our clients.

  • Naming Structure for Files: Files that are produced follow some sort of naming convention and structure, typically either the original file name or some sort of naming convention that involves a unique identifying prefix followed by a zero-filled number (e.g., ABC000001.{file extension}).
  • Image Endorsements: Of course, images that are produced typically include a Bates number on each page that involves a unique identifying prefix followed by a zero-filled number (see example above), but endorsements can also include special endorsements such as a confidential stamp, so we provide a place on our questionnaire for clients to provide additional endorsement instructions for text and placement.
  • Metadata Fields and/or Tags to Be Produced: If the client is producing metadata, it’s obviously important to know the fields to be produced and the desired order. We also ask them to specify the delivery format – the typical formats are CSV (comma separated values, which can be loaded into Excel) or DAT (data) file.
  • Populate Production Numbers Back into Database: When clients produce documents, they typically want to track the production numbers, so we give them the option for us to create new fields in their CloudNine database with those production numbers.
  • Branded Images Back into Database: We also offer the same option for putting images branded with the Bates numbers and other endorsements back into the database, so that the client can easily reference the production number when looking at the page.
  • Load File: Often parties agree to produce load files to make it easy for opposing counsel to load the documents and metadata into their own eDiscovery platform, so we will create load files in several industry standard formats to support that requirement.
  • Delivery Method for Production: There are several options for delivering documents and data including CD or DVD, portable hard drive or electronically via File Transfer Protocol (FTP). Some projects, due to HIPAA requirements require special security handling, such as encrypted hard drives or Secured File Transfer Protocol (SFTP).
  • Where to Send Production: If the client selects CD, DVD or Portable Hard Drive, we require the Name, Street Address and Phone Number where the media is being delivered, if they select FTP, we need an FTP address (and any credentials, if necessary, to access it).
  • Name of Production Set: We request that each production set be uniquely named for later reference purposes, which is especially useful when there are multiple productions to track.
  • Other Instructions: Believe it or not, all of the parameters that we’ve identified over the past two days don’t cover every scenario, so we provide a place on the questionnaire to provide any other instructions. Those can range from special handling for other file types, extra copies requested, etc.

As you can see, we collect a lot of information from our clients at production time to ensure a proper production.  There are a lot of variables to consider, so it’s important to be consider those variables not just when producing, but WAY back at the beginning of the case, to ensure that you will be able to fulfill your discovery obligations to opposing counsel.  Hope this list of parameters was helpful.

So, what do you think?  How do you ensure proper productions?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Production from a Provider’s Point of View: eDiscovery Replay

Sometimes, even blog editors need to take a vacation.  But, instead of “going dark” for the week, we thought we would re-cover some topics from the past, when we had a fraction of the readers we do now.  If it’s new to you, it’s still new, right?  Hope you enjoy!  We’ll return with new posts on Monday, August 7.

We sometimes forget that the end goal of the discovery process is production: to produce responsive electronically stored information (ESI) to opposing counsel.  But, do you realize how many parameters and potential permutations there can be to the production process?  Let’s take a look.

eDiscovery providers like (shameless plus warning!) CloudNine handle productions for our clients routinely, (in our case, often out of our own eDiscovery review application, but sometimes out of other applications as well).  When a client asks for a production, there are a series of questions to ask to ensure that the production includes the correct documents in the required format.  To ensure that and avoid potential confusion, we provide a questionnaire to the client to complete to define the parameters of that production.  Examples of information we collect from our clients:

  • Documents to be produced: Typically, we expect the client to identify a tag that was applied to the documents (especially when the documents are in CloudNine) to be used to identify the documents to be produced (e.g., To Be Produced, Responsive-Produce, etc.) and confirm the count of documents that are included in that tag. If the count doesn’t match the tag, we resolve with the client before proceeding.
  • Output Formats to Include: Productions can be native or image, may or may not include Optical Character Recognition (OCR) or extracted text and may or may not include metadata. It’s important to confirm the formats to be produced, which can include all or just some of the available formats.
  • Format of Images: If images are to be produced, we confirm whether they single or multi-page TIFF, or in Adobe PDF.
  • Format of OCR/Extracted Text Files: OCR files can also be produced either in single or multi-page files, so we enable the client to specify the format.
  • Handling of Excel Files: Because they are often not formatted for printing, Excel files often don’t image well and generate a high number of image pages. So, we provide options for producing a placeholder image along with the native Excel file (which is the default option), or TIFFing all or part of the Excel document.
  • Handing of AutoCad Files: Though less common, AutoCad DWG files can also be problematic to convert to TIFF, so we provide a placeholder and native option for this file type as well.
  • Handling of Redactions: If redactions are present, we confirm the production of documents with the redactions present. We also recommend that (and assist clients with) ensuring redacted text is removed from OCR files of the redacted images to ensure that there are no inadvertent disclosures of privileged or confidential information via those text files.

This is just the beginning of what we ask clients.  Tomorrow, we will cover other information we collect to ensure a proper production.

So, what do you think?  How do you ensure proper productions?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Plaintiff Can Review Documents Deemed as Non-Responsive, But Has to Bear its Own Costs: eDiscovery Case Week

eDiscovery Case Week concludes today.  We covered four cases this week and, Wednesday, we covered our Wednesday webcast Key eDiscovery Case Law Review for First Half of 2017 (click here to check out the replay of that) as well.  Here’s the final case.  Just when you thought it was safe to go back in the courtroom!

In Nachurs Alpine Solutions, Corp. v. Banks, No. 15-CV-4015-LTS (N.D. Iowa July 7, 2017), Iowa Chief Magistrate Judge C. J. Williams granted in part and denied in part the plaintiff’s motion to compel ESI discovery, by ordering the defendants to produce all of the ESI documents it identified as unresponsive under an Attorneys Eyes Only label and that the plaintiff bear its own costs of reviewing the documents for the categories it believes may hold relevant documents.

Case Background

In this case regarding allegations of confidential, proprietary, and trade secret information taken by a former employee of the plaintiff to the defendant (his new employer), the Court entered an order regarding ESI after a dispute between the parties.  Using search terms approved in the Court’s order, the defendants searched their ESI for documents containing those search terms. The defendants then reviewed those documents for privilege, duplication, and relevance.

The defendants produced two batches of ESI, along with a privilege log reflecting documents withheld on privilege grounds.  The second production batch included placer-sheets stating “Non-Responsive File” marking 235 documents that the defendants believed were nonresponsive.  Through discussions, the plaintiff apparently discovered there were as many as 44,000 other documents that the defendants had withheld from the first batch as nonresponsive (defendants put the number at approximately 24,000 documents).

Attempts to resolve their differences on the first batch proved fruitless and, while the plaintiff identified 28 categories of documents it believed were properly withheld as non-responsive, it identified four categories of documents it believed were relevant and requested an order requiring defendants to produce all of the nonresponsive documents under the same conditions as those produced in the second batch (i.e., (1) Attorneys Eyes Only designation; and (2) no admission of relevance), with defendants paying attorneys’ fees for the cost of culling through the documents for responsive documents.  The defendants argued that plaintiff’s motion amounts to a request that defendants “perform a second, costly review of all of the 24,479 documents withheld as non-responsive.”

Judge’s Ruling

In considering the “countervailing factors”, Judge Williams found that “it would be disproportional to require defendants to go back through the documents to identify those that fall within the four categories plaintiff believes are most likely to generate relevant documents. Nor, even if it did, is it likely that plaintiff would not be any more satisfied or the Court more confident with the result.”  He also presumed that the defendants were “unwilling to comply with the alternative because plaintiff wants defendants to pay the attorneys’ fees associated with culling through the documents”, not because the defendants had something to hide.

As a result, Judge Williams ruled, as follows: “The Court finds the appropriate resolution to this dispute is: (1) defendants produce all of the ESI documents it identified as unresponsive under an Attorneys Eyes Only label; (2) that the production is not to be deemed as an admission by defendants that the documents are relevant; and (3) that plaintiff bear its own costs of reviewing the documents for the categories it believes may hold relevant documents. Should plaintiff discover relevant documents during this review which it believes were wrongfully withheld by defendants, then plaintiff can bring a motion for sanctions at that time to recover some or all of the attorneys’ fees associated with the search.”

So, what do you think?  Should parties be ordered to produce documents determined to be non-responsive absent a clear showing that they were misclassified?  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.

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 Grants Most of Plaintiff’s Cost Recovery Request, Including All eDiscovery Costs: eDiscovery Case Week

eDiscovery Case Week continues.  We’ll cover four cases this week and, yesterday, we covered our Wednesday webcast Key eDiscovery Case Law Review for First Half of 2017 (click here to check out the replay of that) as well.  Here’s the next case.  Just as there are five “Sharknado” movies (sadly), there will be five case law related posts this week.

In Ariel Inv., LLC v. Ariel Capital Advisors LLC, No. 15 C 3717 (N.D. Ill., July 17, 2017), Illinois District Judge Matthew F. Kennelly granted the prevailing plaintiff’s request to tax most requested costs in the amount of $99,378.32, including the entire amount ($85,666.51) requested for reimbursement for eDiscovery costs.

Case Background

In this case where the plaintiff sued the defendant alleging trademark infringement, unfair competition, and cybersquatting in violation of the Lanham Act, the Court granted summary judgment for the defendant on the cybersquatting claim before trial, but the plaintiff prevailed in a bench trial on its remaining Lanham Act and state law claims.  The Court entered a permanent injunction barring the defendant from continuing to use the term “Ariel” in connection with its business.

After the ruling, the plaintiff submitted a request to cover “nearly $110,000 in costs” under Federal Rule of Civil Procedure 54(d).  The defendant contended that no costs should be awarded because the plaintiff only partially prevailed, whereas the plaintiff argued that it was the prevailing party because it was awarded substantial relief.

Judge’s Ruling

With regard to the defendant’s claim that no costs should be awarded because the plaintiff only partially prevailed, Judge Kennelly ruled: “The prevailing party for purposes of Rule 54(d) is the party that prevails with regard to a substantial part of the litigation…There is no question that Ariel Investments prevailed with regard to a substantial part of the litigation. Indeed, it was the prevailing party on all of its claims other than the cybersquatting claim.”

With that issue decided, Judge Kennelly considered reimbursement requests related to costs for depositions, court transcripts, exemplification and other costs, including eDiscovery costs totaling $85,666.51.  Judge Kennelly noted that the “Seventh Circuit has not addressed in detail the recoverability of e-discovery expenses” and that “[t]his Court and others in the district have previously followed the reasoning of the Third Circuit” in cases like Race Tires of America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) (covered by us here), which ruled against several eDiscovery related costs as not constituting “making copies”.

Nonetheless, Judge Kennelly stated: “Ariel Investments has sufficiently shown that the costs it requests are recoverable. Specifically, Ariel Investments has established, by way of an affidavit offered in response to Ariel Capital’s challenge to the content of the e-discovery vendor invoices, that the charges for which it seeks reimbursement all involved expenses for ‘the process by which documents in a variety of native forms . . . are copied and converted’ to a readable format…Ariel Capital cannot reasonably object to otherwise recoverable costs that it required Ariel Investments to incur.”

As a result, Judge Kennelly granted the plaintiff’s request to tax the entire amount ($85,666.51) requested for reimbursement for eDiscovery costs and total costs in the amount of $99,378.32.

So, what do you think?  Why do some courts award reimbursement of eDiscovery costs while others don’t?  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.

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

Today’s the Day to Learn How Recent eDiscovery Case Law Has Affected Your Organization: eDiscovery Case Week

eDiscovery Case Week continues.  We’ll cover four cases this week (catching up on a couple from earlier this year) and we’ll cover today’s webcast Key eDiscovery Case Law Review for First Half of 2017 (click here to sign up for that) as well.  Land shark!

The best predictor of future behavior is relevant past behavior. Nowhere is that truer than with legal precedents set by past case law decisions, especially when it relates to eDiscovery best practices.  Are you aware of recent case law decisions related to eDiscovery best practices and what that those decisions mean to your organization?

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Key eDiscovery Case Law Review for First Half of 2017.  This one-hour webcast will cover key case law covered by the eDiscovery Daily blog related to eDiscovery for the first half of 2017, what the legal profession can learn from those rulings and whether any of the decisions run counter to expectations set by Federal and State rules for civil procedure. Topics include:

  • How should objections to production requests be handled?
  • Are you required to produce subpoenaed data stored internationally?
  • Should there be a limit to fees assessed for discovery misconduct?
  • When is data stored by a third party considered to be within your control?
  • Should courts dictate search terms to parties?
  • How can you make an effective proportionality argument to address burdensome requests?
  • Can the requesting party dictate the form of production?
  • Does storing data on a file share site waive privilege?
  • If data is intentionally deleted, should Rule 37(e) apply?
  • Is circumstantial evidence of intentional spoliation good enough to warrant sanctions?
  • Should keyword search be performed before Technology-Assisted Review?

I’ll be presenting the webcast, along with Julia Romero Peter, General Counsel and VP of Sales at CloudNine AND Karen DeSouza, Director of Review Services for CloudNine.  To register for the webcast, click here.  If you miss it, it’s gone forever! (not really, it’s being recorded)… :o)

So, what do you think?  Do you think case law regarding eDiscovery issues affects how you manage discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Defendant Not Sanctioned Despite Use of Evidence Wiping Software: eDiscovery Case Week

eDiscovery Case Week continues.  We’ll cover four cases this week (catching up on a couple from earlier this year) and we’ll cover our Wednesday webcast Key eDiscovery Case Law Review for First Half of 2017 (click here to sign up for that) as well.  Here’s the next case.  And, unlike the “Phelps vs. Shark” debacle, I promise nothing about this post was computer generated… :o)

In HCC Ins. Holdings, Inc. v. Flowers, No. 1:15-cv-3262-WSD (N.D. Ga., Jan. 30, 2017), Georgia District Judge William S. Duffey, Jr. denied the plaintiff’s motion for adverse inference sanctions despite evidence that the defendant had used evidence wiping software twice after being ordered to produce her personal computer, stating that the plaintiff “offers only bare speculation that any of its trade secrets or other data were actually transferred” to the defendant’s laptop.

Case Background

In this case, the defendant was accused of misappropriating trade secrets after she left her company and started a competitive company. The plaintiff claimed that when the defendant left the company, she took confidential files with her to benefit her new company and also claimed that, after receiving the lawsuit papers in this case, and after the Court ordered the defendant to produce her personal computer, she destroyed data on her personal laptop and also on a thumb drive that was plugged into her personal computer on September 20, 2015 (which was after she received a preservation notice and the complaint in the case).

The defendant’s husband, an experienced IT professional, claimed he inserted his personal thumb drive on September 20 to back-up data on the defendant’s personal laptop, but the thumb drive was corrupted and did not work, and that he therefore threw it away (the defendant’s own computer forensic expert claimed that it did work properly the second time, when it was plugged in for 38 seconds.

On September 19, 2015, and again three days later, the day after the Court ordered the defendant to produce her personal computer, the computer wiping program CCleaner was manually run on her personal laptop.  During that time, the program Defraggler (program that overwrites deleted files in unallocated space on a computer’s hard drive) was also run and so was a program called WinUndelete (which is used to recover deleted files).  The plaintiff claimed the defendant’s husband used WinUndelete to confirm that he had destroyed evidence, but he claimed he ran the program off of his work thumb drive to familiarize himself with it for future use for work purposes.  After running extensive searches over several weeks, a neutral examiner did not locate any of the plaintiff’s confidential information or trade secrets on any of the devices produced by the defendant.

Judge’s Ruling

In reviewing the results, Judge Duffey stated: “HCC’s Motion is based on a series of events it casts as suspicious, but HCC offers only bare speculation that any of its trade secrets or other data were actually transferred from HCC Life’s systems to Flowers’ personal laptop. A party seeking spoliation sanctions must prove that (1) the missing evidence existed at one time; (2) the defendant had a duty to preserve the evidence; and (3) the evidence was crucial to the plaintiff’s prima facie case… Here, after extensive discovery, including examinations by a neutral forensic examiner and the parties’ expert forensic examiners, depositions, and subpoenas of email and cloud-based storage companies, HCC does not provide any evidence to show that Flowers or her husband actually transferred any data from HCC Life to her personal devices or cloud storage media she controlled.”

As a result, Judge Duffey ruled as follows: “Though Flowers’ and her husband’s actions are troubling, and in breach of her duty to preserve, the Court finds spoliation sanctions are not warranted.”

So, what do you think?  Is this ruling troubling?  Or should the motioning party be required to show evidence of actual responsive ESI deleted?  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.

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 Rules that Plaintiff’s Request for Data from Defendant is “Extraordinarily Burdensome”: eDiscovery Case Week

Why is a picture of a shark on this post?  Because it’s Shark Week on the Discovery Channel (not electronic discovery of course, but the generic kind of discovery).  To celebrate Shark Week in eDiscovery terms, we’ve decided to make this week eDiscovery Case Week on the eDiscovery Daily blog.  We’ll cover four cases in the next five days (catching up on a couple from earlier this year) and will cover our Wednesday webcast Key eDiscovery Case Law Review for First Half of 2017 (click here to sign up for that) as well.  Here’s the first case.

In Solo v. United Parcel Services Co., No. 14-12719 (E.D. Mich. Jan. 10, 2017), Michigan Magistrate Judge R. Steven Whalen agreed that the defendant showed that the level of data requested by the plaintiff “would be extraordinarily burdensome” and ordered the parties to discuss the defendant’s proposed methodology and “meet, confer, and agree on a mutually acceptable sampling methodology” if the plaintiff did not agree to the defendant’s approach.

Case Background

In this class action suit, the plaintiffs alleged that the defendant consistently overcharged for delivery charges that had a declared value of $300 or more.  In an interrogatory, the plaintiffs requested the defendant to provide detailed information for packages with a declared value of $300 or more over the alleged overcharging period, which could extend as far back as 2008 from the end date of December 29, 2013.

In response, the defendant contended that providing the package-specific information requested would be excessively burdensome in terms of both time, manpower, and costs and indicated that the “package level detail” requested by Plaintiffs is only maintained in a “live” format (easily accessible electronically) for a limited time period and is then archived on backup tapes.  To bolster its claim that the request was burdensome, the defendant estimated that it would take at least six months just to restore the archived tapes as described above, at a cost of $120,000 in labor, requiring its employees to take on responsibilities outside of their regular duties and that cost estimate did not include the time and expense of analyzing the data once extracted in order to answer the interrogatory.

Instead, the defendant provided an estimate of the number of packages with declared value over $300 that were shipped during the period June 30, 2013 to December 29, 2013 – this time period was chosen because its contract terms state that a customer must give notice of a billing dispute within 180 days, or the issue is waived.

Judge’s Ruling

In evaluating the defendant’s response to the plaintiff’s request, Judge Whalen stated: “I am persuaded that UPS has carried its burden of showing that producing package-specific information going as far back as 2008 would be extraordinarily burdensome, particularly at this stage of the proceedings. Given the scope of UPS’s business operations and the exigencies of its proprietary billing system, there is a valid business reason for maintaining ‘live’ data for a limited period of time and storing older data on backup tapes.”  Judge Whalen also agreed with the defendant that if it prevailed on the 180 day limit issue, “the most likely period that will be found relevant will be the six-month time frame from June 30, 2013 to December 29, 2013.”

With that in mind, Judge Whalen stated: “The estimate that UPS produced for the six-month period encompassing the latter half of 2013 was based on a method that extrapolated “live” data from a more recent period. At the time this motion was filed, Plaintiffs were not privy to UPS’s methodology, given that it involved disclosure of proprietary information. However, now that a protective order has been entered [Doc. #74], UPS will disclose its methodology under the “attorneys’ eyes only” provision. It may be that Plaintiff is satisfied that UPS’s methodology is sufficient. If not, the parties will meet, confer, and agree on a mutually acceptable sampling methodology.”

So, what do you think?  Did the defendant provide enough basis to show the plaintiff’s request to be extraordinarily 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.

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.

Need an “Assist” with Your eDiscovery Practices? Get an eDiscovery Assistant!: eDiscovery Best Practices

As someone who writes a blog daily for (part of) my living, I can attest that it can be a challenge to stay on top of eDiscovery trends and case law.  I try to do my best to provide some of that to the readers of this blog and, when it comes to case law, we provide posts on about 60 to 70 cases each year (we’re over 400 unique cases covered lifetime).  But, here’s a resource that provides access to even more case law, and several other great resources, as well.

eDiscovery Assistant™ is a site developed by ESI Attorneys that was built by attorneys and information law practitioners to provide several resources to help people get started — faster and with confidence — in eDiscovery.  Those resources include: case law, rules, checklists, forms, glossary of terms and (coming soon) a learning center with short, practical videos that explain concepts users can implement in their own eDiscovery operations.

When you open eDiscovery Assistant, you begin with a dashboard that shows you recent case law on the left hand side and a History of your activities on the right hand side to enable you to get back to something you looked at previously.  A list of Favorites that you’ve created is listed in the lower left side of the form and cite lists of case law searches is shown in the lower right side of the form.  Along the top of the form is a menu to enable you quickly navigate to search for case law, locate Federal, State and other rules, access a resource of checklists and forms for best eDiscovery practices, access your cite lists and access a glossary of eDiscovery-related terms.  Here’s an example of what the dashboard looks like:

According to the eDiscovery Assistant site, they have a database of over 5,000 eDiscovery decisions.  Each of those is categorized by the types of issues being addressed, so if you want to click on a type of issue to see how many case decisions and opinions there are about it, simply click on the issue to pull up all of those cases.  For example, clicking on the Technology Assisted Review (TAR) issue pulls up 39 results.  You can also perform date range searches and look for specific names (such as the name of a judge in whose courtroom you may find yourself) and other terms.  The application enables you to view the case decision and download it to PDF if desired.  As somebody who does a lot of research into key eDiscovery case law, it’s nice to have it all in one place.

The Checklists and Forms page includes over 40 checklists and forms in a variety of areas ranging from identifying relevant sources of ESI to legal holds to meet & confer/Rule 26 conferences, with forms and letters including sample preservation letters, sample clawback agreement and chain of custody forms.  It’s a great resource for those who need some help in getting started in several key areas of the eDiscovery process.

I spoke to Kelly Twigger, CEO of ESI Attorneys and eDiscovery Assistant, about the goal for the platform and why she decided to build the platform in the first place:

“I built eDiscovery Assistant to be the practice tool I wanted for my practice. I wanted to find case law by issue FAST. I wanted to know what discovery decisions the judge assigned to my case has authored without sifting through everything she’s written. And I wanted the rules for all jurisdictions at my fingertips. That’s why we built a proprietary tagging structure to let you sort case law by issue, jurisdiction, judge, date and keyword. Hours of work is reduced to minutes. ROI is made with one search.”

Kelly also indicated that they are “working with eDiscovery professionals from around the country to create a community of users who want to stop reinventing the wheel and learn as technology and the law develop.”

From a pricing standpoint, Kelly indicated that pricing is available on a per seat, multiple seat or custom site basis.  You can sign up directly for per seat monthly and annual subscriptions on ediscoveryassistant.com. The annual subscription includes two free months.  For firms or organizations seeking more than five seats, you can contact them to set up multiple seats on one account.

eDiscovery Assistant also offers the ability for a firm or organization to have a separate branded site. Custom sites can also include a separate administrative backend to upload proprietary checklists and templates for sharing within the firm only.  Contact them at 720.414.6106 or at support@ediscoveryassistant.com to inquire about pricing for custom options.

I want to thank everybody at the Women in eDiscovery (WiE) Houston Chapter for inviting me to speak at the Legal Technology Showcase & Conference yesterday.  It was a terrific and very well attended conference!  I also want to thank my fellow panelists in the “State of the Industry” panel: Lana Schell from ONE Discovery (who moderated), Michele Lange of KrolLDiscovery, Lynn Frances Jae of iCONECT and Richard Dilgren of Fronteo.  We led off with the first panel of the day and discussed a variety of topics including Technology Assisted Review, the growth of cloud automation technology within eDiscovery, the impact of cybersecurity on eDiscovery and the impact of the 2015 Federal rules changes.  It was an enjoyable and informative discussion!

So, what do you think?  Do you have a go to resource for eDiscovery case law and best practices?  Besides eDiscovery Daily, of course!  :o)  Please share any comments you might have or if you’d like to know more about a particular topic.

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.