Close
Enter your
text here

Preservation

Court Denies Sanctions Request Because Defendant Didn’t Prove the Information was Irretrievable: eDiscovery Case Law

In Envy Hawaii LLC v. Volvo Car USA LLC, No. 17-00040 HG-RT (D. Haw. Mar. 20, 2019), Hawaii District Judge Helen Gillmor denied the defendant’s motion for spoliation sanctions, stating that the defendant “has not established that spoliation sanctions are available because the information it seeks is not “lost” within the meaning of Fed. R. Civ. P. 37(e).”

Case Background

In this case involves contract disputes and claims of improper business practices between a local automobile dealership and the national distributor of Volvo automobiles, the parties had engaged in two years of litigation, produced discovery, and conducted depositions.  The defendant claimed that the plaintiff and its sole owner and manager failed to preserve certain electronically stored information (Google e-mail accounts and electronic dealer management system records) in violation of Federal Rule of Civil Procedure 37(e).  The plaintiff and its owner claimed no spoliation had occurred because any relevant records are available from third-parties and sanctions were not appropriate.

Judge’s Ruling

Judge Gilmor noted that “[t]he text of Federal Rule of Civil Procedure 37(e) provides that evidence is ‘lost’ and subject to spoliation sanctions when a party failed to take reasonable steps to preserve it, and ‘it cannot be restored or replaced through additional discovery’” and that “[i]nformation is ‘lost’ for purposes of Rule 37(e) only if it is irretrievable from another source, including other custodians.”  She also stated that “[s]poliation sanctions are not available pursuant to the 2015 Amendment to Rule 37(e) when information is not lost.”

With regard to that, Judge Gilmor stated:

“Volvo Car USA LLC admits that it has not sought any of the discovery from either CDK Disk or Google Enterprise. Volvo Car USA LLC’s Motion is focused on Envy Hawaii LLC’s failure to preserve the information.”

Noting that “Volvo Car USA LLC may issue subpoenas to obtain records from Google and/or CDK Drive prior to May 15, 2019”, Judge Gilmor denied the defendant’s motion for spoliation sanctions.

So, what do you think?  Should parties be required to confirm with third parties that information is not available before filing motions for spoliation sanctions?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

In Lawsuit Over Prince Music, Court Grants Monetary But Not Adverse Inference Sanctions (Yet): eDiscovery Case Law

In Paisley Park Enter., Inc. v. Boxill, No. 17-cv-1212 (WMW/TNL), (D. Minn. Mar. 5, 2019), Minnesota Magistrate Judge Tony N. Leung granted in part the plaintiffs’ Motion for Sanctions Due to Spoliation of Evidence, ordering the Rogue Music Alliance (“RMA”) Defendants to pay reasonable expenses, including attorney’s fees and costs, that Plaintiffs incurred as a result of the RMA Defendants’ “misconduct”, and also ordered the RMA Defendants to pay into the Court a fine of $10,000, but chose to defer consideration of adverse inference instruction sanctions to a later date, closer to trial.

Case Background

In this infringement case involving release of previously unreleased music by the late artist Prince, the estate of Prince filed suit against George Ian Boxill, a sound engineer who worked with Prince and allegedly took tracks of certain songs that he worked on with Prince in April 2017, as well as RMA and Deliverance, LLC.  The plaintiffs subsequently added David Staley and Gabriel Solomon Wilson (principals of RMA and Deliverance) and two law firms in June 2018 to the lawsuit.

In December 2017, after Plaintiffs filed their first amended complaint, they, RMA, Deliverance, and Boxill, stipulated to certain protocols regarding the discovery of ESI in which the parties indicated that they had taken “reasonable steps to preserve reasonably accessible sources of ESI.”  The Court then issued its pretrial scheduling order in January 2018, directing the parties to preserve “all electronic documents that bear on any claims, defenses, or the subject matter of this lawsuit.”

During discovery, the plaintiffs received a third-party production of documents from a public relations firm that the defendants had hired which included text messages that Wilson sent to an employee of the public relations firm. The plaintiffs then filed a motion to compel discovery from RMA, seeking production of text messages that Staley and Wilson sent to each other and third parties and the Court ordered the defendants to produce all responsive text messages on July 19, 2018.  During a meet and confer in September 2018, counsel for Wilson, Staley, RMA and Deliverance indicated that they could not produce responsive text messages because they had not preserved their text messages, indicating that text messages had not been preserved because Staley and Wilson did not disengage the auto-delete function on their phones and because Staley had wiped and discarded his phone in October 2017 and Wilson had wiped and discarded his phone in January 2018 and then wiped and discard his new phone in May 2018.  No back-up data existed for either phone, leading to the plaintiffs’ motion for sanctions under Rule 37(e)(1), 37(e)(2) and 37(b)(2)(A).

Judge’s Ruling

With regard to the defendants’ duty to preserve, Judge Leung ruled that “the duty to preserve evidence arose no later than February 11, 2017, when Staley sent an e-mail regarding his plans to release the music at issue here. In that e-mail, Staley acknowledged the riskiness of his and RMA’s position and indicated that the Prince Estate could challenge their actions. Staley referred specifically to the possibility of litigation in that e-mail, noting that RMA was not concerned by a lawsuit because it had been indemnified by Boxill. It is apparent, based on this letter, that the RMA Defendants anticipated litigation following their release of the Prince music.”

With regard to whether the defendants took reasonable steps to preserve relevant ESI, Judge Leung noted that “It takes, at most, only a few minutes to disengage the auto-delete function on a cell phone” and stated “Failure to follow the simple steps detailed above alone is sufficient to show that Defendants acted unreasonably.”  He then added:

“But that is not all the RMA Defendants did and did not do. Most troubling of all, they wiped and destroyed their phones after Deliverance and RMA had been sued, and, in the second instance for Wilson, after the Court ordered the parties to preserve all relevant electronic information, after the parties had entered into an agreement regarding the preservation and production of ESI, and after Plaintiffs had sent Defendants a letter alerting them to the fact they needed to produce their text messages. As Plaintiffs note, had Staley and Wilson not destroyed their phones, it is possible that Plaintiffs might have been able to recover the missing text messages by use of the “cloud” function or through consultation with a software expert. But the content will never be known because of Staley and Wilson’s intentional acts. The RMA Defendants’ failure to even consider whether Staley and Wilson’s phones might have discoverable information before destroying them was completely unreasonable. This is even more egregious because litigation had already commenced.”

Judge Leung rejected several arguments from the defendants as to why their decision not to preserve text messages was reasonable, including the claim that “they could not possibly be expected to know that they should preserve text messages”, stating “None of these arguments is persuasive”.  Judge Leung also found that “There is no doubt that Plaintiffs are prejudiced by the loss of the text messages.”  But, with regard to the adverse inference sanctions sought by the plaintiffs, he also said that “given the fact that discovery is still on-going, the record is not yet closed, and the case is still some time from trial, the Court believes it more appropriate to defer consideration of those sanctions to a later date, closer to trial”.  He did, however, order the RMA Defendants to “pay reasonable expenses, including attorney’s fees and costs, that Plaintiffs incurred as a result of the RMA Defendants’ misconduct” and also ordered the RMA Defendants to pay into the Court a fine of $10,000.

So, what do you think?  Should the defendants have received the adverse inference sanction as well?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

For more info on this ruling, check out Ralph Losey’s e-Discovery Team® blog here.

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.

Court Orders Defendants to Comply with Rule 26(a), Ditch the Boilerplate Objections: eDiscovery Case Law

In RightCHOICE Managed Care, Inc. v. Hospital Partners, Inc., No. 5:18-cv-06037-DGK (W.D. Mo. Feb. 1, 2019), Missouri District Judge Greg Kays ordered the discovery defendants to “supplement their initial disclosures so that they comply with Rule 26(a)” (within 14 days) and “either respond to Plaintiffs’ interrogatories and requests for production in good faith or specifically tailor their objections to each question or request”, as well as requiring each discovery defendant to “prepare a statement identifying the steps taken to preserve discoverable information”, among other things.

Case Background

In this case involving alleged improper billing of lab tests, the parties conferred under Federal Rule of Civil Procedure 26(f) in October 2018.  The plaintiffs served the discovery defendants with interrogatories and requests for production of documents the following week. The discovery defendants responded on November 26, objecting to every one of the plaintiffs’ questions and requests, using language like this:

“Defendant objects to this request as vague, overly broad, unduly burdensome, harassing, and/or seeking information that is irrelevant and/or not reasonably calculated to lead to the discovery of admissible evidence.”

On January 24, the Court held a teleconference hearing to discuss the dispute. During the hearing, the plaintiffs stated that the discovery defendants failed to identify any witnesses in their Rule 26(a)(1) initial disclosures, made boilerplate objections to every interrogatory, and improperly invoked the Fifth Amendment. When the Court asked the discovery defendants’ counsel whether they had produced a single document in the case, he “enthusiastically” replied, “Nope.”

As a result, the plaintiffs requested that the Court order the discovery defendants to (1) amend their initial disclosures; (2) produce responsive, non-privileged documents requested from Hospital Partners and Empower H.I.S.; (3) specify exactly which interrogatories Byrns and Perez object to on the basis of the privilege against self-incrimination; (4) answer Plaintiffs’ interrogatories in good faith or have adverse inferences drawn from their refusal; and (5) each provide a sworn statement identifying the steps taken to preserve discoverable information. Not surprisingly, the discovery defendants asked the Court to deny these requests.

Judge’s Ruling

Noting that “Rule 26(a)(1) requires litigants to provide ‘the name and, if known, the address and telephone number of each individual likely to have discoverable information’”, Judge Kays stated that the discovery defendants’ disclosures – which merely listed “corporate representative[s]” of various unnamed entities, such as “any billing/management vendors of the Defendants, with no specific reference to the information held by the entities and no address or phone numbers – “fail to comply with Rule 26(a)(1)”.  Judge Kays ordered the discovery defendants to “supplement their initial disclosures with the specific names and contact information, if known, of individuals likely to have discoverable information.”  He also indicated that they “must also provide copies of, or a list detailing, by category and location, all documents, electronically stored information, and tangible things in their possession, custody, or control that they may use to support their claims or defenses.”

Judge Kays also rejected the discovery defendants’ use of the Fifth Amendment privilege against self-incrimination, stating: “Their invocation is invalid. To begin, the Fifth Amendment does not protect Hospital Partners and Empower H.I.S. because they are artificial legal entities” (despite the discovery defendants’ claims that they are “alter egos of the individual defendants”.  As a result, he ordered defendants Hospital Partners and Empower H.I.S. “to produce relevant, non-privileged documents and respond to Plaintiffs’ interrogatories” and also ordered defendants Byrns and Perez “to produce all relevant, non-privileged business records in their possession” and to “contour their Fifth Amendment objections to each particular interrogatory, so that, if necessary, the Court can make a question-by-question judgment on the privilege’s applicability.”

As for the boilerplate objections, Judge Kays ordered the discovery defendants to “either respond to Plaintiffs’ questions and requests or tailor their objections with much greater particularity. If they assert a privilege, they must provide a privilege log.”

Finally, Judge Kays stated that the discovery defendants’ “failure to produce a single document, months into discovery, concerns the Court” and also expressed concerns about the plaintiffs’ allegations that the defendants “have not issued retention notices and {the plaintiffs} are unaware of the location of Empower H.I.S.’s records.”  As a result, Judge Kays agreed with the plaintiffs that “the Discovery Defendants each need to prepare a sworn statement detailing their efforts to preserve discoverable information” and noted that if the discovery defendants’ behavior were to continue, “the Court will consider imposing sanctions.”

So, what do you think?  Should the defendants have already been sanctioned, or is that premature?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

To Preserve Sanction Potential, Plaintiff Fights To NOT Have Claim Against Them Dismissed: eDiscovery Case Law

Yes, you read that right.  In DR Distrib., LLC v. 21 Century Smoking, Inc., No. 12 CV 50324 (N.D. Ill. Feb. 12, 2019), Illinois District Judge Iain D. Johnston denied the defendants’ Motion for Leave to Amend their counterclaim to remove their own defamation counterclaim (Count VIII) against the plaintiffs – a move to which the plaintiffs objected, because it could eliminate their chance to pursue sanctions against the defendants for ESI spoliation.

Case Background

In this trademark infringement case, where, according to Judge Johnston, “the parties have engaged in a plethora of discovery disputes and pleadings practice”, the defendants moved for leave to amend their counterclaim under Fed. R. Civ. P. 15 to remove Count VIII, “defamation per se”, against the plaintiff – three years and eight months after the expiration of the amended pleading deadline.  This was the third time that one of the parties moved to amend a pleading after the deadline (second time requested by the defendant), the court had denied the previous two attempts.

Judge’s Ruling

Judge Johnston began his ruling by stating:

“A party rarely objects to the dismissal of a claim against it. But it happens. See, e.g., Chavez v. Illinois State Police, 251 F.3d 612, 655-56 (7th Cir. 2001). This is one of those rare occasions. Context explains these unusual circumstances. Not surprisingly, like most bizarre legal circumstances, this situation is caused because each side is attempting to obtain a procedural litigation advantage. This Court is confident that its analysis and decision is correct. But this Court also recognizes that this opinion proves two old adages: (1) bad facts make bad law; and (2) judges who like all their decisions are likely bad judges.”

Judge Johnston proceeded to note that “raging in this case is an ESI food fight of Hollywood proportions”, stemming from “the loss of ESI relating to the defendants’ seemingly relevant emails and instant messages”, which was initially limited to the defendants’ defamation counterclaim.  As Judge Johnston noted: “During the ESI melee, by this Motion, defendants sought to eliminate Count VIII. Although unstated, to even the most casual observer, the reason for this move was obvious: If Count VIII were eliminated, then the ESI fracas would be moot. No harm; no foul.”  He also stated that “plaintiffs promise to file a brief longer than a CVS receipt to address the ESI issues”, raising “nearly every conceivable basis for sanctions”.  Summing up the situation, Judge Johnston stated that “plaintiffs cannot obtain these sanctions if Count VIII is eliminated (at least if the ESI were only relevant to Count VIII). Therefore, plaintiffs object, despite the seeming benefit of having a claim against them eliminated. So here we are.”

Make sense now?

In considering the defendants’ motion, Judge Johnston indicated that “defendants dedicate a large portion of their briefs to argue that Rule 15 governs this Motion, and that ‘[t]he court should freely give leave [to amend] when justice so requires’”, but responded that “when a motion to amend a pleading comes after a case management order is entered, Rule 16(b)(4)’s ‘good cause’ standard must be satisfied before a court considers whether Rule 15(a)(2)’s standards are satisfied.”  Judge Johnston also observed that the defendants had failed to show diligence, stating:

“This Motion, brought almost four years after the expiration of the amended pleading deadline, represents the first time that defendants have sought to dismiss Count VIII. These facts would lead a reasonable person to conclude that the real, but unstated, reason to eliminate Count VIII is to avoid the ESI maelstrom on the horizon.”

As a result, stating that defendants “have failed to show good cause pursuant to Rule 16 to amend the case management order”, Judge Johnston denied their motion and indicated that the “issues related to possible sanctions raised in plaintiffs’ response will be addressed in the separate round of briefing.”

So, what do you think?  Is the plaintiff making a big gamble in leaving a claim against them in the case to try to push for sanctions?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

No Bad Faith Means No Sanctions for Failing to Preserve Video of Altercation: eDiscovery Case Law

In Stovall v. Brykan Legends, LLC, No. 17-2412-JWL (D. Kan. Feb. 7, 2019), Kansas Magistrate Judge James P. O’Hara denied the plaintiff’s motion for sanctions based on the defendant’s alleged spoliation of a surveillance video that shows an altercation between the plaintiff and her supervisor, stating that “plaintiff has failed to meet the requirements of Fed. R. Civ. P. 37(e)(2)”.

Case Background

In this employment discrimination case involving claims of sexual harassment, the plaintiff was injured in 2016 in a physical confrontation with her supervisor (who was also the alleged harasser) and the confrontation was recorded on one of defendant’s surveillance cameras.  Shortly thereafter, the plaintiff filed a claim for workers’ compensation based on her alleged injuries and a few months after that, the plaintiff filed a discrimination charge with the Kansas Human Rights Commission (“KHRC”), which sent the defendant a letter advising that the destruction of records related to the charge was forbidden by law.

The plaintiff’s workers’ compensation claim was settled in January 2017.  In February 2017, plaintiff’s current counsel sent defendant a letter, stating plaintiff had retained them to represent her in connection with employment discrimination claims and advising defendant of its obligation to preserve records, videos, and files pertaining to plaintiff’s employment and discharge.  The plaintiff subsequently filed the suit in July 2017.

On July 3, 2018, plaintiff tendered a document request for, among other things, “surveillance footage, recordings or other video…that refer or relate to any events alleged in Plaintiff’s Complaint.”  The defendant responded that there “was a surveillance tape that depicted the altercation”, but that defendant “is unable to locate the tape.” The response also advised that a “copy or link” of the video was provided to the attorney representing the defendant in the workers’ compensation matter, but that “the link has expired.” The defendant’s representative (Rauschelbach) testified at his deposition that after the incident, he maintained a copy of the surveillance video in his desk drawer, but that he could no longer find it, despite “desperately looking”, leading to the plaintiff’s motion for sanctions.

Judge’s Ruling

In assessing the plaintiff’s motion, Judge O’Hara noted that “the parties agreed the surveillance video is a form of electronically stored information (“ESI”) subject to the preservation requirements of Rule 37(e)”.  As a result, he evaluated each of the factors of Rule 37(e) in turn:

  • Duty to Preserve: Judge O’Hara noted that “defendant concedes that as of October 11, 2016, the date on which it received notice of plaintiff’s discrimination charge from the KHRC, it ‘had an obligation to preserve the video.’” But, regarding the defendant’s argument that it had already “turned the video over to its insurance company” in connection with the workers’ compensation claim, Judge O’Hara said “The problem with defendant’s argument is that it does not account for the fact that defendant had two copies of the surveillance video. Defendant does not address the duty it had to preserve the copy of the video kept in Rauschelbach’s desk drawer.”
  • No Reasonable Steps to Preserve: Noting that the “defendant does not suggest any steps it took to preserve the video”, Judge O’Hara stated regarding the contention that sending a copy to its workers’ compensation insurer was a step to preserve that “The court knows of no case construing such an action as a step to preserve.”
  • No Ability to Restore or Replace: Noting that “plaintiff acknowledged during the pretrial conference that she had not issued a subpoena to the workers’ compensation insurer in an attempt to have a copy of the video retrieved off of their system or a computer hard drive”, Judge O’Hara stated that “the court concludes plaintiff has not proven the video cannot be replaced or restored” and in “a close call”, indicated he “has not found all three prerequisites to spoliation met”.
  • Bad Faith: Judge O’Hara noted that even if the plaintiff had met the spoliation prerequisites, she failed to demonstrate bad faith on the part of the defendant. Judge O’Hara stated “Although defendant’s failure to take steps to preserve the ESI may be negligent, even grossly negligent, nothing in the record suggests defendant intentionally lost the video.”

As a result, the plaintiff’s motion was denied.

So, what do you think?  Do you agree the plaintiff failed to demonstrate spoliation and bad faith?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

If you read my post on Thursday, you learned about the love of my life.  Today is her birthday.  Happy Birthday, honey!  I love you!

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.

Mobile to the Mainstream All in One Place: eDiscovery Best Practices

Craig Ball has had a lot to say about mobile device discovery, including various posts on his excellent Ball in Your Court blog (we’ve covered several of those, including this one and this one).  Now, he has assembled all of that good information in a single guide for reviewing all at once!

Mobile to the Mainstream: Preservation and Extraction of iOS Content for E-Discovery is a 24-page PDF guide that is comprised of two sections:

  • Section I (pp. 3-8 and Appendices 1-3) addresses simple, scalable preservation of iPhone and iPad content, enabling litigants to meet the duty to preserve data in anticipation of civil litigation. It informs attorneys who aren’t tech-savvy how to handle iOS-device preservation and explains why there’s little burden or cost attendant to preserving iPhones and iPads. Unlike in other scenarios, Craig points out here the benefits of custodian-directed collection (like the fact that the custodian doesn’t have to give up their phone) and the tamper-proof nature of the iPhone backup process to provide a step-by-step process to perform the backup.
  • Section II (pp. 17 et seq. and Appendix 4) looks at simple, low-cost approaches to extracting relevant mobile data to a standard e-discovery workflow and offers a Mobile Evidence Scorecard to promote consensus as to what forms of mobile content should be routinely collected and reviewed in e-discovery, giving due consideration to need, speed and expense. The Scorecard itself is terrific as it provides a simple handy reference guide regarding the different types of mobile data and the ease of collection, ease of review, potential relevance and whether you should expect to routinely collect that mobile data type.  Craig also identifies several iPhone Backup Data Extraction Tools that are worth checking out, as well.

In the introduction to the guide, Craig sums up the need for these guidelines and tips, as follows:

“Chances are you’re reading this on your phone or tablet. If not, I’ll bet your phone or tablet are at hand. Few of us separate from our mobile devices for more than minutes a day. On average, cell users spend four hours a day looking at that little screen. On average. If your usage is much less, someone else’s is much more.

It took 30 years for e-mail to displace paper as our primary target in discovery. It’s taken barely 10 for mobile data to unseat e-mail as the Holy Grail of probative electronic evidence. Mobile is where evidence lives now; yet, mobile data remains “off the table” in discovery. It’s infrequently preserved, searched or produced.”

Craig will also be presenting regarding mobile devices at the University of Florida E-Discovery Conference in March.  As I noted yesterday, early bird registration is open for $49 for both in person or livestream until January 31st!  That’s 75% off the in-person price!  You can register here to attend, either in person or via livestream.  Do it quickly and save!

Craig will also be presenting as part of our NineForum educational presentations CloudNine is conducting at Legaltech.  More on that program to come in the next few days – it’s very exciting!

So, what do you think?  Do you routinely deal with mobile devices in discovery or is it still rare?  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.

Another Commentary from The Sedona Conference: eDiscovery Best Practices

The Sedona Conference® (TSC) Conference and its Working Group 1 on Electronic Document Retention & Production (WG1) have yet another publication to announce in 2018.  Last week, TSC’s WG1 group announced a new second edition commentary on Legal Holds.

Thursday, TSC’s WG1 group announced its Commentary on Legal Holds, Second Edition: The Trigger & The Process.  Much has changed in the law and technology since The Sedona Conference published the First Edition of this Commentary back in September 2010 (hey, that’s when this blog was founded!). This Second Edition of the Commentary on Legal Holds, which provides practical guidelines for determining when the duty to preserve relevant information arises as well as the scope of preservation, reflects:

  • the 2015 amendments emphasizing the proper scope of discovery and the enhanced role of proportionality in preservation, as well as sharpening the analysis of sanctions for the loss of discoverable electronically stored information (ESI);
  • clarification of the duty of a non-party to respond to a subpoena compared to the duty to preserve information;
  • new guidance on how organizations should address data protection laws and regulations that may affect an organization’s ability to implement legal hold data preservation measures outside of the United States;
  • developments in state and federal case law on preservation and spoliation;
  • new and novel sources of ESI requiring preservation and collection; and
  • advances in electronic document management technology.

Importantly, this Second Edition incorporates the knowledge and guidance embodied in the updated Third Edition of The Sedona Principles.

This Commentary is contained within a manageable 43 page PDF document and, as many good TSC commentaries do, includes several guidelines “to help a party meet its duty to preserve discoverable information and to provide pragmatic suggestions and a framework for creating a set of preservation procedures.”  Here they are:

Guideline 1: A reasonable anticipation of litigation arises when an organization is on notice of a credible probability that it will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation.

Guideline 2: Adopting and consistently following a policy governing an organization’s preservation obligations are factors that may demonstrate reasonableness and good faith.

Guideline 3: Adopting a procedure for reporting information relating to possible litigation to a responsible decision maker may assist in demonstrating reasonableness and good faith.

Guideline 4: Determining whether litigation is or should be reasonably anticipated should be based on a good-faith and reasonable evaluation of relevant facts and circumstances.

Guideline 5: Evaluating an organization’s preservation decisions should be based on the good faith and reasonableness of the decisions (including whether a legal hold is necessary and how it should be implemented) at the time they are made.

Guideline 6: Fulfilling the duty to preserve involves reasonable and good-faith efforts, taken as soon as is practicable and applied proportionately, to identify persons likely to have information relevant to the claims and defenses in the matter and, as necessary, notify them of their obligation to preserve that information.

Guideline 7: Factors that may be considered in determining the scope of information that should be preserved include the nature of the issues raised in the matter, the accessibility of the information, the probative value of the information, and the relative burdens and costs of the preservation effort.

Guideline 8: In circumstances where issuing a legal hold notice is appropriate, such a notice is most effective when the organization identifies the custodians and data stewards most likely to have discoverable information, and when the notice:

(a) communicates in a manner that assists persons in taking actions that are, in good faith, intended to be effective;

(b) is in an appropriate form, which may be written, and may be sent by email;

(c) provides information on how preservation is to be undertaken, and identifies individuals who can answer questions about preservation;

(d) includes a mechanism for the recipient to acknowledge that the notice has been received, read, and understood;

(e) addresses features of discoverable information systems that may make preservation of discoverable information more complex (e.g., auto delete functionality that should be suspended, or small sections of elaborate ac-counting or operational databases);

(f) is periodically reviewed and amended when necessary; and

(g) is followed up by periodic reminder notices, so the legal hold stays fresh in the minds of the recipients.43

Guideline 9: An organization should consider documenting the procedure of implementing the legal hold in a specific case when appropriate.

Guideline 10: Compliance with a legal hold should be regularly monitored.

Guideline 11: Any legal hold process should include provisions for releasing the hold upon the termination of the duty to preserve, so that the organization can resume adherence to policies for managing information through its useful life cycle in the absence of a legal hold.

Guideline 12: An organization should be mindful of local data protection laws and regulations when initiating a legal hold and planning a legal hold policy outside of the United States.

The Sedona Conference Commentary on Legal Holds, Second Edition: The Trigger & The Process is open for public comment through February 8, 2019. As always, questions and comments regarding the Commentary may be sent to comments@sedonaconference.org and the drafting team will carefully consider all comments received and determine what edits are appropriate for the final version.  You know the drill.

It’s been a busy year for The Sedona Conference® (TSC).  Earlier this year, the TSC has published the Public Comment Version of its Principles and Commentary on Defensible Disposition, the Public Comment Version of their Primer on Social Media, Second Edition (which we discussed in our panel at Relativity Fest earlier this week), the Public Comment version of its Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations, the final version of its new Data Privacy Primer and its Commentary on Information Governance, Second Edition.

So, what do you think?  Does your organization have a program for Legal Holds?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Here’s a Terrific Scorecard for Mobile Evidence Discovery: eDiscovery Best Practices

As we’ve noted before, eDiscovery isn’t just about discovery of emails and office documents anymore.  There are so many sources of data these days that legal professionals have to account for and millions more being transmitted over the internet every minute, much of which is being transmitted and managed via mobile devices.  Now, here’s a terrific new Mobile Evidence Burden and Relevance Scorecard, courtesy of Craig Ball!

Craig has had a lot to say in the past about mobile device preservation and collection, even going as far as to say that failure to advise clients to preserve relevant and unique mobile data when under a preservation duty is committing malpractice.  To help lawyers avoid that fate, Craig has described a simple, scalable approach for custodian-directed preservation of iPhone data.

Craig’s latest post (Mobile to the Mainstream, PDF article here) “looks at simple, low-cost approaches to getting relevant and responsive mobile data into a standard e-discovery review workflow” as only Craig can.  But, Craig also “offers a Mobile Evidence Scorecard designed to start a dialogue leading to a consensus about what forms of mobile content should be routinely collected and reviewed in e-discovery, without the need for digital forensic examination.”

It’s that scorecard – and Craig’s discussion of it – that is really cool.  Craig breaks down various types of mobile data (e.g., Files, Photos, Messages, Phone Call History, Browser History, etc.) in terms of Ease of Collection and Ease of Review (Easy, Moderate or Difficult), Potential Relevance (Frequent, Case Specific or Rare) and whether or not you would Routinely Collect (Yes, No or Maybe).  Believe it or not, Craig states that you would routinely collect almost half (7 out of 16 marked as “Yes”, 2 more marked as “Maybe”) of the file types.  While the examples are specific to the iPhone (which I think is used most by legal professionals), the concepts apply to Android and other mobile devices as well.

I won’t steal Craig’s thunder here; instead, I’ll direct you to his post here so that you can check it out yourself.  This scorecard can serve as a handy guide for what lawyers should expect for mobile device collection in their cases.  Obviously, it depends on the lawyer and the type of case in which they’re involved, but it’s still a good general reference guide.

So, what do you think?  Do you routinely collect data from mobile devices for your cases?  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.

Judge Recommends Sanctions for Defendant Under FRCP 37(e)(1): eDiscovery Case Law

In Franklin v. Howard Brown Health Ctr., No. 17 C 8376 (N.D. Ill. Oct. 4, 2018), the Illinois Magistrate Judge, stating that “the defendant has had to concede that, at the very least, it bollixed its litigation hold – and it has done so to a staggering degree and at every turn”, recommended that the plaintiff’s motion for discovery sanctions be granted to the extent that the “parties be allowed to present evidence and argument to the jury regarding the defendant’s destruction/failure to preserve electronic evidence in this case”.

Case Background

In this case for workplace harassment and discrimination, this particular dispute began with the plaintiff’s document request, which required the defendant to produce emails and text messages exchanged between certain key parties involving the plaintiff.  The defendant referred plaintiff to a number of “emails” already produced, but the plaintiff was looking for “instant messages,” as this was the method the plaintiff alleged the individuals used to harass him, but the defendant produced only two of those, despite the fact that deposition testimony indicated that was the standard way employees communicated with one another and one of the key parties said he saved “instant messages” to his Outlook email folder (despite the defendant’s claims that they weren’t as a matter of course).

According to the plaintiff’s supervisor, the plaintiff specifically promised a lawsuit based on “racism, transphobia and sexism” among the staff as early as July 24, 2015, but the defendant’s attorney categorized that as a “vague threat”.  One of the plaintiff’s alleged harassers left the company a mere two days after that, but his computer was wiped within 7 days of his last day at work.  According to the defendant’s general counsel, the litigation hold was not instituted until August 28, 2015.  In the GC’s affidavit, she indicated that he instructed an IT administrator to remove the plaintiff’s computer from the wiping process, but apparently never followed up or looked at the computer (that IT administrator had also left the company and was also now suing the defendant) and that data was lost as well.  The defendant’s GC also never instructed anyone in the IT department to stop the auto-delete of any saved instant messages – as a result, “barely a handful” of them were produced.

Judge’s Ruling

Noting that the “failure to preserve electronic evidence is covered by Fed.R.Civ.P. 37(e)”, the Magistrate Judge said that “In the end, given at least what appears to be the defendant’s gross negligence – and that’s viewing things favorably to the defendant – the best route is that proposed by the Advisory Committee in its notes to the 2015 amendment to Fed.R.Civ.P. 37(e)(1), specifically, allowing the parties to present evidence to the jury regarding the situation that was caused by defendant’s faulty and failed litigation hold… Accordingly, it is recommended that parties be allowed to present evidence and argument to the jury regarding the defendant’s destruction/failure to preserve electronic evidence in this case, and that the jury be instructed as the trial judge deems appropriate.”

So, what do you think?  Is the recommendation an appropriate application of FRCP 37(e)(1)?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Also, it’s time for the Fall 2018 eDiscovery Business Confidence Survey on Rob Robinson’s Complex Discovery site.  This quarter’s survey is unique in the fact that it asks three additional questions beyond the standard nine business confidence questions asked during the previous eleven surveys. These new questions are focused on understanding operational business trajectories around the areas of days sales outstanding (DSO), monthly recurring revenue (MRR), and revenue distribution across customer bases.  The response period is between today and achievement of 66 responses or November 30, 2018 (whichever comes first).  66 is not a lot of responses, so you’ll want to get your response in quickly!  We’ll cover the results once they’re published.

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.

Court Denies Plaintiff’s Request for Sanctions for Defendant’s Failure to Preserve Surveillance Video: eDiscovery Case Law

In Ball v. George Washington Univ., No. 17-cv-0507 (DLF) (D.D.C. Sept. 27, 2018), District of Columbia District Judge Dabney L. Friedrich, denied the plaintiff’s motion for sanctions for allegedly destroying two surveillance videos, stating: “Because Ball has not proven—even by a preponderance of the evidence—that GW permanently stored the Lafayette Hall surveillance footage, the Court need not conduct further inquiry under Rule 37(e).”

Case Background

In this case for wrongful termination, negligence and violations of rights, the defendant considered surveillance footage from two days (July 13 and 14, 2015) that showed the plaintiff entering and exiting buildings on campus, during its investigation preceding the termination of the plaintiff’s employment.  The defendant produced a July 13 video of the plaintiff in one building and produced screenshots of the July 14 surveillance footage from another building, Lafayette Hall, but it did not produce videos of Lafayette Hall for either July 13 or July 14, which reportedly showed the plaintiff entering and exiting at different times than he had indicated on his time sheet.

According to declarations, the surveillance footage was recorded on network video recorders that automatically delete old footage as the recorders become full. The video recorders that stored the July 13 and 14 Lafayette Hall footage at issue typically delete footage every 30 days (and sometimes as early as 14 days) after recording. Defendant police officers routinely permanently download surveillance footage for use in criminal investigations; however, they download surveillance footage for Human Resources (HR) investigations only upon an HR investigator’s request.

In this case, the parties disputed whether the footage at issue was downloaded: the plaintiff contended that the surveillance footage was permanently stored on CDs and given to a member of the defendant’s HR department (Claude Owens), and ultimately to the defendant’s in-house counsel, arguing that the videos’ alleged non-existence showed that the defendant’s in-house counsel destroyed or lost the videos. The defendant countered that the surveillance footage was not permanently stored but instead was automatically overwritten within 30 days (and possibly 14 days) of recording.  While Owens “thought he might have given the tape to ‘the lawyers’”, a detective with the defendant’s police force (Detective Robinson) stated in a declaration that he never downloaded the Lafayette Hall sixth floor footage and had only showed and sent screenshots to the HR employee.

Judge’s Ruling

Judge Friedrich stated: “Although the evidence before the Court is unclear, the weight of the evidence tilts in favor of GW’s explanation. Robinson’s declaration, coupled with evidence that the envelope remained sealed until Romero opened it, supports a finding that the surveillance footage of Lafayette Hall was never downloaded from the video recorders. Robinson stated that he never downloaded the Lafayette Hall sixth floor footage…And Owens testified that neither he nor Wells ever opened the sealed envelope…To the extent that the deposition testimony of Wells and Owens provides any support for Ball’s theory, the evidence is speculative and inconclusive…Because Ball has not proven—even by a preponderance of the evidence—that GW permanently stored the Lafayette Hall surveillance footage, the Court need not conduct further inquiry under Rule 37(e).”

So, what do you think?  Should the defendant have preserved the video if it was used as evidence to terminate the plaintiff’s employment?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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