eDiscoveryDaily
Forgetting about the Other Side of the Law is Criminal: eDiscovery Case Law
In our webcast on Wednesday titled What Every Attorney Should Know About eDiscovery in 2017 (if you missed it, you can watch it here), we covered (as we always do) several key cases that established eDiscovery best practices and trends (and a few with litigants behaving badly). One of the questions from the audience was to ask whether we could provide any eDiscovery case law related to criminal cases. Apparently, every example we provided was a civil case.
We will have to add in coverage of criminal cases the next time we conduct a presentation like that. Regardless, I told the audience that I could send them some links to criminal cases we’ve covered if they wanted to send me an email and a few of the attendees did so. As a result, I performed a search on the blog (after all, it is a knowledge base with the entire 6+ year history of posts) to look for criminal cases that we’ve covered in the past.
Here are seven posts relating to criminal cases – it’s not an exhaustive list, but it does provide at least a sampling of cases that we’ve covered over the years (#7 is my favorite):
Court Denies Defendant’s Motion to Require Plaintiff to Re-Produce Data in a More Usable Format: In United States v. Meredith, Kentucky Senior District Judge Charles R. Simpson, III denied the defendant’s motion to compel production of electronically stored information (ESI) by the plaintiff in a usable format, agreeing that the plaintiff had fulfilled its discovery production obligation pertaining to the manner and format of the ESI.
Court Rules that Judges Can Consider Predictive Algorithms in Sentencing: Score one for big data analytics. According to The Wall Street Journal Law Blog, the Wisconsin Supreme Court ruled last week that sentencing judges may take into account algorithms that score offenders based on their risk of committing future crimes.
Was Spoliation Intentional? Court Will Let Jury Decide: In Cahill v. Dart, Illinois District Judge John Z. Lee adopted, with modifications, the Report and Recommendation of Magistrate Judge Cox regarding the plaintiff’s motion to sanction the defendants for destruction of evidence, indicating that Judge Cox’s proposed sanction would be imposed and also that the jury would be informed that the defendants failed to meet their duty to preserve video, giving the plaintiff the option to argue to the jury that the failure to preserve the video was intentional.
Government Ordered to Maintain Expensive Custom Database Shared with Criminal Defendant: In the criminal case of United States v. Shabudin, California Magistrate Judge Nandor J. Vadas ordered the Government to continue to provide access to a Relativity Database used by the parties to review documents produced by the Government, instead of discontinuing access for the defendants several weeks before trial was to begin due to budgetary issues.
Hard Drive Turned Over to Criminal Defendant – Eight Years Later: As reported by WRAL.com in Durham, North Carolina, the defense in State of North Carolina v. Raven S. Abaroa filed a Motion to Dismiss the Case for Discovery Violations after the state produced a forensic image of a hard drive (in the middle of trial) that had been locked away in the Durham Police Department for eight years.
Court Denies Criminal Defendant’s Attempt to Quash Twitter Subpoena: In People v. Harris, Criminal Court Judge Matthew A. Sciarrino, Jr. ruled that the defendant lacked standing to move to quash the prosecution’s subpoena served upon Twitter, a third-party in the case, for records of the defendant’s Twitter account. The defendant was a protester arrested during a march on the Brooklyn Bridge as part of the Occupy Wall Street movement, and in prosecuting the case, the prosecution sought his Twitter records for the time period relevant to the defendant’s involvement in the march.
Free Trojans with Your Document Production: An Arkansas lawyer representing three Fort Smith police officers in a whistleblower case is seeking sanctions after his computer expert found malware on an external hard drive supplied in response to a discovery request, according to a story by the Northwest Arkansas Democrat Gazette.
If you know of a recent criminal case (with eDiscovery implications) that you’d like for us to cover, feel free to send me a link to it and I’ll see about covering it.
So, what do you think? Do you practice law in criminal courts and feel that there’s not enough discussion about eDiscovery for your cases? As always, 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.
Court Orders Plaintiff to Produce Native Format Version of Email Potentially Altered: eDiscovery Case Law
In Lifetouch National School Studios, Inc. v. Roles, No. 3:15-cv-234 (W.D. P.A., Dec. 15, 2016), Pennsylvania District Judge Kim R. Gibson granted the portion of the defendant’s motion to compel associated with the request for the plaintiff to produce all copies of a potentially altered email in native format circulated within its organization or any of its agents.
Case Background
In this breach of contract case, the plaintiff alleged that the defendant had accepted a sales position with a competitor of the plaintiff company (Strawbridge Studios, Inc.) and solicited the plaintiff’s employees and customers in violation of her employment agreement. During discovery, two different versions of a particular email were produced: one received by a client where the client wrote “Strawbridge[,] No contract.” and the other received by Strawbridge forwarded by an employee (Joseph Segall) of the plaintiff where the client had written “Strawbridge[,] No contract. Beth Roles.”
Both individuals who wrote the emails testified under oath that they did not include the defendant’s name in the emails, leaving the defendant to request leave to amend her counterclaim, alleging that the Strawbridge email was altered by the plaintiff to interfere with her employment at Strawbridge. The Court granted as unopposed the defendant’s motion for leave to amend. The defendant then filed a motion to compel production of, among other things, copies of the email in native format from all individuals at the plaintiff’s organization to whom it was forwarded or sent.
Judge’s Ruling
Judge Gibson first commented on the relevancy of the email, stating “Based on Roles’s counterclaims, this information falls within the scope of relevant material. Roles’s counterclaims are premised on the allegation that Lifetouch intentionally altered the August 25, 2015 email. Documents illustrating how that email was circulated within Lifetouch relate to whether Lifetouch did in fact alter the August 25, 2015 email, and—if so—how that alteration occurred.”
When assessing the appropriateness of discovery of the emails, Judge Gibson, noting that the plaintiff appeared to have abandoned earlier privilege objections for the emails, noted “Lifetouch appears to argue that it has already produced enough information regarding the emails. Lifetouch states that Roles ‘already has a copy of the email from Segall to Strawbridge,’ and Lifetouch goes on to explain that it has produced PDF versions of the email and the native form of the email as forwarded from Segall to Strawbridge. Further, Lifetouch argues that ‘a copy of that email in native form is not only unreasonable, but not likely to lead to the discovery of admissible information based on those emails that have already been produced.’”
In response, Judge Gibson said “These arguments are insufficient to avoid discovery. As an initial matter, the fact that Roles already has a copy of the August 25, 2015 email has no bearing on whether Lifetouch altered the email. The relevance of the documents Roles seeks is derived from their circulation within Lifetouch; a complete picture of how the email was received, discussed, and ultimately sent—or even discussed after it was sent—would be relevant to Roles’s claims. Thus, the fact that Roles already has a copy of the email is irrelevant. And Lifetouch’s argument that it should not have to produce these documents because it already produced a copy of the email from Segall to Strawbridge is unpersuasive for the same reasons.”
Judge Gibson also noted that, while arguing that production in native format is unreasonable, “Lifetouch does not explain what about native production would be unreasonable. Furthermore, Lifetouch specifically agreed ‘to produce . . . electronic documents in native format’ in the parties’ Rule 26(f) Report.”
As a result Judge Gibson granted the portion of the defendant’s motion to compel associated with production of the potentially altered email in native format and also ruled that “attorneys’ fees for this portion of Roles’s Motion to Compel are proper” and ordered the defendant to submit an affidavit detailing the attorneys’ fees she incurred in bringing her Motion to Compel.
So, what do you think? Was it appropriate to order production of the email in native format? 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.
What Every Attorney Should Know About eDiscovery in 2017: eDiscovery Trends
Early this year, I asked if we’ve (finally) reached the age of technical competence of attorneys. Perhaps we’re not there yet. However, CloudNine is sponsoring a webcast today which may help bridge the gap.
Today’s webcast at noon CT (1pm ET, 10am PT) is titled What Every Attorney Should Know About eDiscovery in 2017 and will be conducted via the BrightTALK network. This is a one-hour session that Karen DeSouza (Director of Review Services here at CloudNine) and I have conducted for the past couple of years for hundreds of legal professionals for CLE credit in Texas. It’s a good fundamental session that covers a lot of things attorneys need to know in eDiscovery today, including
- Key Terms to Know Regarding eDiscovery
- Phases of the eDiscovery Life Cycle
- Federal and State Rules Regarding Electronically Stored Information (ESI)
- Competency Ethical Duties of Attorneys Regarding eDiscovery
- Important Cases in the Evolution of eDiscovery Best Practices
- Useful Resources for eDiscovery Continued Education
The webcast is CLE Approved in Texas and Florida. The Texas approval is 1.0 hours of CLE credit, with 0.25 hours of Ethics credit. To obtain approval in Texas, you will need to send your information (along with bar number) after the webcast to Karen at kdesouza@cloudnine.com, so that she can log your credit hour.
The Florida approval is for 1.0 hours of CLE, with 1.0 hours of Technology CLE credit. As you’ll remember, Florida late last year mandated three hours of technology CLE for attorneys over a three year period, starting January 1 of this year. So, if you’re in the Florida Bar, this an opportunity to get one of those hours!
To sign up for today’s webcast, click here.
So, what do you think? Do you have your eDiscovery fundamentals down? If not, please feel free to join us! And, as always, 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.
“Legalweek, The Experience” 2017 is One Week From Today!: eDiscovery Trends
What is “Legalweek, The Experience”, you say? LegalWeek is LegalTech New York, along with six other “events-within-an-event” that will be going on next week in New York at the New York Hilton Midtown, starting next Tuesday, January 31 and concluding on Thursday, February 2. Let’s take a look at some of the sessions and events worth particular note for eDiscovery professionals.
Several Tracks Dedicated to eDiscovery: There is at least one educational track each day devoted to eDiscovery, with Forward Thinking in eDiscovery on Tuesday, The Challenges of Cross-Border eDiscovery and Ediscovery Everywhere on Wednesday and E-Discovery’s New Frontiers on Thursday. So, there are plenty of eDiscovery related sessions during the conference (and at least three different ways to spell eDiscovery apparently). There are also at least a couple of tracks related to Information Governance (IG) and Cybersecurity (Data Security and Governance on Tuesday and 2017: Information Governance Challenges and Solutions on Thursday). So, there are plenty of interesting sessions to check out.
Tuesday Highlights: At 12:45pm, the session EDRM & NOT eDiscovery? looks intriguing – the panelists apparently apply the EDRM framework to non-discovery related challenges such as data migration and company mergers, acquisitions and divestitures. Another interesting session is at 2:15pm (eDiscovery, the Cloud & Beyond) which looks to discuss IG and litigation readiness for data in the cloud.
I would be remiss if I didn’t also mention that CloudNine and ACEDS is hosting Drinks with Doug (that’s me!) and Mary (as in Mary Mack, Executive Director of ACEDS!) at Ruth’s Chris Steak House at 148 West 51st Street on Tuesday from 4:00pm to 6:00pm. It’s a “PowerPoint free” event to hang out with other conference attendees over a drink. Space is filling up, but you can still RSVP here if you’ll be at the show and want to attend. Come join us!
Wednesday Highlights: At 9:00am, the session The Effects of the December 2015 Amendments to the Federal Rules of Civil Procedure from 3 Perspectives (Judges, Defense & Plaintiff), with panelists like Judges Peck, Rodriguez and Laporte, as well as some notable law firm panelists seems like a can’t miss opportunity to get insight as to how the 2015 Rules changes have impacted discovery. With recent developments in international discovery privacy laws, The Data Privacy Landscape: Emerging Laws Affecting Cross-Border Discovery at 10:30am should be a good look at a quickly changing landscape.
Thursday Highlights: For those who think eDiscovery is only about litigation, consider attending the 10:30am session E-Discovery for Investigations and Criminal Matters to learn more about its expanding role in new areas of law and corporate governance. And, it’s always interesting to see thought leaders predict the future, which is what will happen at The Future of e-Discovery Law, Business, and Practice at 2:00pm.
Exhibit Hall: Of course, the largest legal technology conference of the year wouldn’t be complete without an extensive list of exhibitors. This year, according to my count, there are 182 exhibitors (which is actually a few more than last year, reversing a slide in the number of exhibitors since 2013). One thing which will be interesting this year: for the first time “Exhibits-Plus” passes are not free like they have been in previous years – it now costs $45 to get into the State of the Industry Address, Keynotes, Emerging Technology and Super Sessions and, of course, the Exhibit Hall (still a lot for the money). Nonetheless, it will be interesting to see how the first-time cost will affect attendance at the show and the Exhibit Hall.
As always, we will cover the show here at eDiscovery Daily, including a list of eDiscovery and IG related sessions each day. Check here for the sessions you may want to check out at the conference!
So, what do you think? Are you attending LegalTech, er, LegalWeek next week? Please share any comments you might have with us or let us know 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.
(The) Winter (eDiscovery Business Confidence Survey) is Coming: eDiscovery Trends
Winter is Coming! And, by “winter”, I mean the Winter 2017 eDiscovery Business Confidence Survey created by Rob Robinson and conducted on his terrific Complex Discovery site. It’s the second year of the quarterly survey and we covered all four rounds of the survey last year (those results are here, here, here and here). Now, it’s time for the Winter 2017 Survey to start a new year!
As before, the eDiscovery Business Confidence Survey is a non-scientific survey designed to provide insight into the business confidence level of individuals working in the eDiscovery ecosystem. The term ‘business’ represents the economic factors that impact the creation, delivery, and consumption of eDiscovery products and services.
This year’s survey consists of nine multiple choice questions focused on factors related to the creation, delivery, and consumption of eDiscovery products and services and may be useful for eDiscovery-related business planning. It’s a simple nine question survey that literally takes about a minute to complete. Who hasn’t got a minute to provide useful information? As always, individual answers are kept confidential, with the aggregate results to be published on the Complex Discovery blog upon completion of the response period, which goes through Tuesday, February 28.
The more respondents there are, the more useful the results will be! What more do you need? Click here to take the survey yourself.
Now that we have entered a second year for the survey, we can start to evaluate year over year results to differentiate those variations from quarterly fluctuations. Knowledge is power!
So, what do you think? Are you confident in the state of business within the eDiscovery industry? Share your thoughts in the survey and, 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.
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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.
Now, We Have a Privacy Shield with the Swiss Too: eDiscovery Trends
This appears to be our week to cover privacy stories on the blog. First, The Sedona Conference® (TSC) released the public comment version of its new Data Privacy Primer (which we covered on Tuesday). Also, last week, U.S. and Swiss authorities announced final agreement on the Swiss-U.S. Privacy Shield Framework.
The JD Supra article Swiss-U.S. Privacy Shield Finalized (written by Michael Young of Alston & Bird and originally sourced here), indicates that the Framework defines standards for handling personal data exported from Switzerland to the U.S. and enables U.S. companies to meet Swiss legal requirements to protect personal data transferred from Switzerland. Like the EU-US Privacy Shield was adopted to replace the old Europe Safe Harbor agreement after it declared invalid by the by the European Court of Justice, this Framework is a successor to the former Swiss-U.S. Safe Harbor framework, which was declared invalid by the Swiss data protection commissioner following the invalidation of European Safe Harbor.
U.S. companies may participate in the Framework through an application to the International Trade Association in the U.S. Department of Commerce. Starting April 12, U.S. companies may make an application self-certifying their compliance with Swiss-U.S. Framework Principles.
As Young’s article notes, the Swiss-U.S. Privacy Shield Framework is modeled off of the EU-U.S. Privacy Shield Framework approved by the EU Commission in July last year and the two Framework principles are largely identical. However, they differ slightly with regard to the definition of “sensitive information” – the Swiss Framework expressly includes within its definition of “sensitive information” any “information on social security measures or administrative or criminal proceedings and sanctions, which are treated outside pending proceedings (unlike the EU-U.S. Framework).” As a result, companies who certify their compliance under the Swiss-U.S. Framework may need to implement further measures to secure opt-in consent if such “sensitive information” is shared with third parties or used for purposes which were not clear at the time of original collection.
Because the EU-U.S. Privacy Shield Framework extended only to members of the European Economic Area (EEA) and Switzerland is not a member of the EEA, U.S. and Swiss officials sought a separate Privacy Shield agreement. Since the EU-U.S. Privacy Shield Framework already faces legal challenges in European courts, it will be interesting to see if the Swiss-U.S. Framework quickly faces those same challenges.
The Swiss-U.S. Privacy Shield Framework is contained within this 69 page document which includes Department of Commerce letters describing the Framework (the Framework itself begins on page 13 of the document). For more information on the self-certification program, click here.
So, what do you think? Will both Privacy Shield Frameworks survive legal challenges? 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.
Looking Back at Predictions That I Made Three Years Ago, Part 2: eDiscovery Predictions Revisited
Yesterday, I took a look back at two posts that comprised six eDiscovery predictions for 2014 that I wrote three years ago. I thought it might be fun to look back at those posts to see how those predictions fared. I covered the first three predictions yesterday, so today I’ll cover the last three.
Prediction 4: Data security will be more of an emphasis than ever, yet we will continue to see more data breach stories than ever.
If you follow our blog regularly, you know that we assign categories to each blog post to make it easier to find posts related to specific topics (that’s how you can quickly find all 500+ case law posts we have published since the inception of the blog back in September 2010). In January of 2014, we hadn’t yet even created a “Security” category – that’s how little the topic was being discussed. Now, we not only have a category, we currently have over 40 posts that have discussed data security and cybersecurity. In addition to increased coverage on our blog, there are several other blogs and resources either dedicated to cybersecurity issues in the legal arena or at least covering them extensively. So, there is plenty of discussion to go around.
Are we seeing more data breach stories than ever? We’ve covered several breach stories on our blog, including this one about my hometown baseball team, this one about a website dedicated to cheating spouses (ok, maybe they had it coming) and this one about a Panamanian law firm that exposed (alleged) illicit offshore holdings of global political leaders and celebrities. Not to mention the data breach associated with our recent presidential election. Clearly, despite increased focus on protection from cybersecurity breaches, they still happen and happen frequently.
Prediction 5: Small to medium sized law firms will need to leverage virtual resources more than ever to compete.
Three years ago, it seemed clear to me that small to medium sized law firms would need to outsource more to compete with the big firms that could afford to insource eDiscovery services. And, I wasn’t the only one advocating the benefits of outsourcing as people like eDiscovery thought leader Ralph Losey (author of the excellent e-Discovery Team® blog and member of big firm Jackson Lewis) were asking questions like “Why should you own and operate a nonlegal e-discovery business within your walls under the guise of a litigation support department?”
I’m not sure that I’ve seen much change in this area, with one exception. More firms – small, medium and large – have embraced self-service SaaS automation eDiscovery platforms than ever before (and providers are taking note as many of the “big boy” providers are changing their business models to offer that option). In my opinion, SaaS automation has definitely revolutionized eDiscovery for solo and small firms, giving them access (for the first time) to full-featured eDiscovery solutions that fit within their budget. So, in that regard, they are able to compete with the big firms.
Prediction 6: Educating attorneys on eDiscovery best practices will continue to be a slow, painful process.
Year after year, I’ve asked various eDiscovery thought leaders at LegalTech New York (our seventh annual interview series is coming up next month!) if attorneys are beginning to “get” eDiscovery. And, year after year, most of them say that we have a long way to go in that area. Up to now, I agree.
But, things may finally be changing. In 2015, California adopted Formal Opinion No. 2015-193, which discussed an attorney’s ethical duties in the handling of discovery of electronically stored information. As of the beginning of 2017, more than half of all states – 26 in all – have some sort of ethical guidance with regard to understanding technology. And, late last year, Florida mandated three hours of technology CLE for attorneys over a three year period, starting January 1 of this year (which is one reason why Florida is one of the states where we have approved CLE for our webcast next week).
It appears that more state bars are beginning to understand the importance for attorneys to understand the technology. And, that technology is continuing to become easier to use. That’s why we may finally be entering an age of technical competence for attorneys. The prediction (that educating attorneys will continue to be slow and painful) is one prediction that I would be happy to be wrong about.
So, what do you think? Has eDiscovery evolved like you thought it would? 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.
Looking Back at Predictions That I Made Three Years Ago: eDiscovery Predictions Revisited
Sometimes, in addition to the many other resources that I use to look for blog post ideas, I like to look back at my old posts from the past to see if there’s a topic that warrants a fresh look. When I did that yesterday, I stumbled on two posts that comprised six eDiscovery predictions for 2014 that I wrote three years ago. I thought it might be fun to look back at those posts to see how those predictions fared.
Here are the six predictions that I made back then:
Prediction 1: Predictive coding technologies will become more integrated into the discovery process, for more than just review.
Prediction 2: The proposed amendments will be adopted, but it will be a struggle.
Prediction 3: The eDiscovery industry will continue to consolidate and many remaining providers will need to continue to reinvent themselves.
Prediction 4: Data security will be more of an emphasis than ever, yet we will continue to see more data breach stories than ever.
Prediction 5: Small to medium sized law firms will need to leverage virtual resources more than ever to compete.
Prediction 6: Educating attorneys on eDiscovery best practices will continue to be a slow, painful process.
Let’s take a look at them, one by one:
Prediction 1: Predictive coding technologies will become more integrated into the discovery process, for more than just review.
Well, we have all been perhaps a little optimistic and maybe a bit overzealous on the pace of adoption of predictive coding technology, maybe even more so with its application to other areas besides review. And, according to Gartner, machine learning (the technology behind predictive coding) is at the Peak of Inflated Expectations. So, we’re probably a bit behind where I thought we would be at this point.
Nonetheless, there have been strides. The Information Governance Initiative launched in February 2014 (after my predictions, I might note – I had no advance intel) with a mission of “sounding a call to arms that current information practices are unsustainable in our increasingly big data world, and that IG solutions exist that better leverage new technology and smart practices”. And, we’ve certainly seen a greater emphasis on data discovery recently (prior to litigation related legal discovery). So, it’s happening, just not as quickly as I expected.
Prediction 2: The proposed amendments will be adopted, but it will be a struggle.
As we know by now, the proposed amendments were adopted, in December 2015. That may seem like a no brainer now, but it wasn’t back at the beginning of 2014. There was lots of debate over controversial Rule 37(e), which addresses sanctions for spoliation. Eventually, Rule 37(e) was amended (not once, but twice) and the Rules amendments proceeded through the adoption process fairly smoothly the rest of the way. Now, “intent to deprive” is perhaps the key phrase to determine whether sanctions will be assessed (and, if so, how severely). So, I think I got that one right. :o)
Prediction 3: The eDiscovery industry will continue to consolidate and many remaining providers will need to continue to reinvent themselves.
Are you kidding me? This one has clearly come to pass. According to my calculations (from Rob Robinson’s list of mergers, acquisitions and investments on Complex Discovery), there have been 110 transactions since the start of 2014 (sure, some of them are investments, but there are a lot of acquisitions and mergers as well). Here are a few names that have been acquired or merged over that time: Applied Discovery, Recommind, Huron Legal, Orange Legal Technologies, Content Analyst, D4, Daegis, Kiersted Systems, Brainspace, Equivio, EQD and Kroll Ontrack.
As for the reinventing themselves, the automation revolution in eDiscovery is clearly forcing some providers to change their focus toward SaaS automation. OK, maybe it seems like this was an easy one to predict, but in 2014, not everyone was seeing a clear trend toward consolidation in the industry. I don’t hear anybody debating that point today.
That was so fun that I think I’ll save the last three predictions for tomorrow! Stay tuned.
So, what do you think? Has eDiscovery evolved like you thought it would? 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.