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eDiscovery Trends: X1 Social Discovery – Social Media Discovery for Professionals
 

According to EDDUpdate.com, social media will be eclipsing email as the primary discovery resource within three years.  Social media has become a normal part of our everyday life as we share our photos on Facebook, tweet news on Twitter, and make professional connections on LinkedIn.  We’ve previously covered social media archiving tools here, highlighting a firm named Smarsh, and the need for effective electronic discovery methods is only growing by the day.  As you can imagine, the sheer amount of content being generated is astounding.  Twitter CEO Dick Costolo announced on June 6th that Twitter had broken the 400 million tweet-per-day barrier, up 18% from 340 million back in March.  These aren’t simply meaningless ones and zeroes, either. X1 Discovery has information for 689 cases related to social media discovery from 2010 and 2011 linked on their website, making it clear just how many cases are being affected by social media these days.

With regard to ESI on social media networks, X1 Discovery features a solution called X1 Social Discovery, which is described as “the industry's first investigative solution specifically designed to enable eDiscovery and computer forensics professionals to effectively address social media content.  X1 Social Discovery provides for a powerful platform to collect, authenticate, search, review and produce electronically stored information (ESI) from popular social media sites, such as Facebook, Twitter and LinkedIn.”

We reached out to X1 Discovery for more information about X1 Social Discovery, especially with regard as to what sort of challenges faces a new tool developed for a new type of information.  For example, why isn’t support for Google+, Google’s fledgling social network, offered?  X1 Discovery Executive Vice President for Sales and Business Development, Skip Lindsey, addressed that question accordingly:

“Our system can be purposed to accommodate a wide variety of use cases and we are constantly working with clients to understand their requirements to further enhance the product.  As you are aware there are a staggering number of potential social media systems to be collected from, but in terms of frequency of use, Facebook, Twitter and Linkedin are far and away the most prominent and there is a lot of constant time and attention we provide to ensure the accuracy and completeness of the data we obtain from those sites. We use a combination of direct API’s to the most popular systems, and have incorporated comprehensive web crawling and single page web capture into X1 Social Discovery to allow capture of virtually any web source that the operator can access. Google + is on the roadmap and we plan support in the near future.”

So, who is going to benefit most from X1 Social Discovery, and how is it different than an archiving tool like Smarsh?  According to Lindsay:

“X1 Social Discovery is installable software, not a service. This means that clients can deploy quickly and do not incur any additional usage charges for case work. Our investigative interface and workflow are unique in our opinion and better suited to professional investigators, law enforcement and eDiscovery professionals that other products that we have seen which work with social media content. Many of these other systems were created for the purpose of compliance archiving of web sites and do not address the investigation and litigation support needs of our client base. We feel that the value proposition of X1 Social Discovery is hard to beat in terms of its functionality, defensibility, and cost of ownership.”

With so many cases requiring collection by experienced professionals these days, it seems appropriate that there’s a tool like X1 Social Discovery designed for them for collecting social media ESI.

So, what do you think?  Do you collect your own social media ESI or do you use experienced professionals for this collection?  What tools have you used?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Privilege Waived Because Defendants Failed to Notice “Something Had Gone Awry” with Their Production
 

In D’Onofrio v. Borough of Seaside Park, No. 09-6220 (AET), (D.N.J. May 30, 2012), New Jersey Magistrate Judge Tonianne Bongiovanni denied the defendants’ motion for discovery to reclaim privileged documents that were inadvertently produced, finding that privilege was waived because the defendants failed to take reasonable measures to rectify the disclosure. 

During the course of discovery in a case where the plaintiff alleged the defendants engaged in conduct that violated the plaintiff’s constitutional and statutory rights, the defendants reviewed 14 boxes of documents for possible production to the plaintiff. Six of those boxes, the “Ryan/McKenna” boxes, were reviewed by a partner at the law firm representing the defendants. The partner marked certain documents as privileged and then instructed a clerical employee to separate privileged and non-privileged documents, to Bates stamp the separated documents, and to burn the non-privileged documents onto a disc for production. The clerical employee failed to follow instructions, and privileged documents were inadvertently produced. 

Despite subsequent events where the defendants could have discovered the mistake, the defendants remained unaware of the accidental disclosure for approximately eight months until the plaintiff attached some of the privileged documents to an exhibit of his brief on an unrelated matter. The intervening events where the defendant failed to notice the production of privileged documents included the following: (1) the defendants voluntarily recalled the disc to reorganize the documents and remove electronic comments inadvertently left on some documents, and then resubmitted the disc to the plaintiff; (2) the defendants again recalled the disc after the plaintiff informed them the new disc was unreadable, and, after a clerical employee performed a “quality control audit” on the disc to ensure the defendants were producing the same set of documents, the defendants again produced the disc; (3) the defendants created a privilege log but did not realize the number of documents for the Ryan/McKenna boxes marked privileged was too small; and (4) after the plaintiff informed them that some of the documents on another disc were out of order, the defendants discovered hundreds of privileged documents from the “borough” boxes, another set of boxes, had been accidentally produced, but the defendants did not re-review the Ryan/McKenna documents that were produced.

Judge Bongiovanni articulated the applicable standard of review under Federal Rule of Evidence 502(b), stating that the factors to be considered in determining whether a waiver occurred are: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosure; and (5) whether the overriding interests of justice would or would not be served by relieving the party of its error.

Judge Bongiovanni had no trouble finding that the defendants “initially” took reasonable precautions to prevent production of privileged documents by devoting sufficient time to review, having a partner personally review all of the Ryan/McKenna documents, delegating to a clerical employee the task of separating privileged and non-privileged documents, and even by reviewing the disc before producing it to the plaintiff.

She then noted that the number and extent of the defendant’s unintentional disclosures were “neutral.”

Turning to the defendants’ efforts to rectify the disclosure, however, Judge Bongiovanni concluded that the defendants “did not take reasonable steps to remedy their error.” She stated, “Defendants should have been aware that something was amiss with their document production long before Plaintiff relied on three privileged documents” in his brief. Furthermore, although the defendants were not obligated to “engage in a post-production review to determine whether any protected communication or information [was] produced by mistake,” once a party is “‘on notice that something [i]s amiss with its document production and privilege review,’ then that party has an obligation to ‘promptly re-assess its procedures and re-check its production.’” The court pointed out that “the combination of the inadvertently produced attorney electronic comments and 728 pages of privileged Borough documents should have put the [ ] Defendants on notice that something had gone profoundly awry with their document production and privilege review.” A “reasonable person” would have rechecked the disc containing the Ryan/McKenna documents, and yet the defendants failed to do so.

Finally, the court also found that the interests of justice favored finding that a waiver occurred because the defendants’ “negligence” led to the inadvertent disclosure of privileged information.

So, what do you think?  Was the ruling fair?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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

eDiscovery Best Practices: Smoking Gun Shoots Blanks, Google Wins Latest Battle in “Smartphone War” with Oracle
 

Despite a significant inadvertent disclosure of information during Google's litigation with Oracle Corp., U.S. District Judge William Alsup last Thursday (May 31) dismissed claims that its Android mobile phone platform infringes Oracle's copyrights relating to the Java computer language.

Oracle had accused Google of infringing the "structure, sequence and organization" of 37 of Java's application programming interface (API) application. Referring to this case as “the first of the so-called smartphone war cases”, Alsup ruled in the 41-page decision that the particular Java elements Google replicated were free for all to use under copyright law, noting: "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API". 

Summarizing the validity of Oracle’s claim, Judge Alsup stated:

“Of the 166 Java packages, 129 were not violated in any way.  Of the 37 accused, 97 percent of the Android lines were new from Google and the remaining three percent were freely replicable under the merger and names doctrines.  Oracle must resort, therefore, to claiming that it owns, by copyright, the exclusive right to any and all possible implementations of the taxonomy-like command structure for the 166 packages and/or any subpart thereof – even though it copyrighted only one implementation.  To accept Oracle’s claim would be to allow anyone to copyright one version of code to carry out a system of commands and thereby bar all others from writing their own different versions to carry out all or part of the same commands.  No holding has ever endorsed such a sweeping proposition.”

Judge Alsup indicated that he was not ruling that Java API packages are free for all to use, stating: “This order does not hold that Java API packages are free for all to use without license.  It does not hold that the structure, sequence, and organization of all computer programs may be stolen. Rather, it holds on the specific facts of this case, the particular elements replicated by Google were free for all to use under the Copyright Act.”

Oracle filed suit against Google in San Francisco federal court in August 2011 claiming that the Android mobile operating system infringed Java copyrights and patents (to which Oracle obtained the rights after acquiring Sun Microsystems in 2010) and once valued damages in the case at $6 billion. In the first phase of the trial, the jury returned a verdict that said Google infringed the structure, sequence, and organization of 37 API packages; however, they deadlocked on Google's affirmative defense that it only made fair use of Java technology and Alsup had not yet ruled on whether the APIs could be copyrighted.  He has now.

Oracle is expected to appeal.

So, what do you think?  Will Oracle appeal and should they do so?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Court Allows Third Party Discovery Because Defendant is an “Unreliable Source”
 

Repeatedly referring to the defendant’s unreliability and untrustworthiness in discovery and “desire to suppress the truth,” Nebraska Magistrate Judge Cheryl R. Zwart found, in Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., No. 8:10CV365, (D. Neb. May 18, 2012), that the defendant avoided responding substantively to the plaintiff’s discovery requests through a pattern of destruction and misrepresentation and therefore monetary sanctions and an adverse jury instruction at trial were appropriate. 

In this trademark action, Judge Zwart awarded sanctions of extensive discovery costs against a defendant that destroyed discoverable electronic evidence, failed to search for and locate other electronically stored information (ESI), and made false representations in affidavits and in court regarding its efforts to search for this evidence. In addition, she allowed the plaintiff to conduct discovery by contacting directly the defendant’s current and former clients, despite the court’s acknowledgment that such contact could harm the defendant’s business. Finally, Judge Zwart recommended an adverse jury instruction be given at trial.

Throughout a lengthy and contentious discovery process, the defendant claimed that its failure to produce any electronic documents containing the plaintiff’s mark demonstrated that there simply were no such documents. What the court ultimately discovered, however, was that no documents were produced for very different reasons: (1) the defendant appeared to have a virtually nonexistent records retention policy; (2) the defendant recovered its external hard drives from its landlord just before the landlord received a subpoena for the hard drives, leading the landlord to claim he did not possess the files; (3) to “comply” with discovery requests, the defendant had an employee who is not a computer expert conduct a keyword search consisting of one word (“Kiewit”) of the defendant’s files (from her own workstation) for the name of the plaintiff’s mark and recovered only two nonresponsive documents; and (4) the defendant discarded what it claimed was a non-functioning server the same month that it received notice of the plaintiff’s discovery requests.

The court ordered a forensic examination of the defendants’ computer systems that revealed thousands of documents containing the keyword “Kiewit” on its face as well as in its metadata. It also revealed at least one document that had been previously produced was missing from the electronic files, contributing to the evidence of spoliation. In ruling, the court pointed out that “considering Defendant’s very liberal policy of not keeping documents, consolidating their records in one location, or organizing their files, their efforts to locate relevant electronic files were woefully inadequate.”

As a consequence of the defendants’ “obstreperous” conduct, Judge Zwart found sanctions were appropriate, including monetary awards and an adverse jury instruction. She granted sanctions pursuant to its “authority to sanction the misconduct of parties and their attorneys . . . derived from the Federal Rules of Civil Procedure and the inherent power of the court,” as well as its “power to shape the appropriate remedy including default judgment, striking pleadings, an adverse jury instruction, and an award of attorney’s fees and costs” derived from precedent. Judge Zwart noted, “The most severe sanctions are reserved for those litigants demonstrating ‘blatant disregard of the Court’s orders and discovery rules’ [and] engaging in a pattern of deceit by presenting false and misleading answers and testimony under oath in order to prevent their opponent from fairly presenting its case.’”

Furthermore, Judge Zwart found the defendants’ conduct dictated that the plaintiff should be permitted to conduct third-party discovery. The plaintiff argued that it needed to contact the defendants’ clients in an effort to determine whether and how the defendants used the plaintiff’s trademark, whereas the defendants argued that they would suffer “irreparable harm” should the plaintiff reach out to their current and former clients. Despite courts’ general reluctance to allow direct contact with litigants’ clients in intellectual property cases, Judge Zwart here found that the plaintiff showed the clients’ information was “relevant and necessary”; moreover, because “Defendants are simply not a reliable source of information” and they “continue to attempt to use client confidentiality as a means of preventing Plaintiff from discovering relevant information,” the plaintiff’s contact with the clients would be proper.

So, what do you think?  Did the court’s sanctions go far enough or should they have been even tougher?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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

eDiscovery Case Law: Inadvertent Disclosure By Expert Waives Privilege
 

In Ceglia v. Zuckerberg, No. 10-CV-00569A(F), (W.D.N.Y. Apr. 19, 2012) (the case where Paul Ceglia is suing claiming 84% ownership of Facebook due to an alleged agreement he had with Mark Zuckerberg back in 2003), New York Magistrate Judge Leslie G. Foschio ruled that an information technology expert’s inadvertent disclosure waived the attorney-client privilege where the plaintiff could not show that it (1) took reasonable steps to prevent the disclosure of the e-mail and (2) took reasonable steps to rectify the error once it discovered the disclosure.

This case involved a dispute over the authenticity of a contract, and in seeking assistance to resolve pretrial matters, the plaintiff filed this motion to compel and asserted, among other things, that the attorney-client privilege should protect an e-mail that was inadvertently disclosed to the defendants. The court set forth the standard under Federal Evidence Rule 502(b) that applies to whether an inadvertent disclosure waives a privilege: “the privilege will not be waived if (1) the disclosure is inadvertent; (2) the privilege holder took reasonable steps to prevent disclosure; and (3) the privilege holder took reasonable steps to rectify the error.” Furthermore, “‘the burden is on the party claiming a communication is privileged” to establish that it met these requirements and that “the opposing party will not be unduly prejudiced by a protective order.”

Because the plaintiff failed to “personally supervise” the actions of the information technology expert he had hired, despite that he understandably hired such an expert to assist him while he was out of town, he “also failed to take reasonable steps to prevent the inadvertent disclosure” of the e-mail. Judge Foschio suggested that instead the defendants could have had the expert “first forward any documents” so that the plaintiff “could have reviewed the documents to ensure there w[ere] no extraneous, privileged materials attached.” If the plaintiff needed to oversee the expert in person, the court admonished, he “should have made himself present to do so.”

Judge Foschio also found that the plaintiff did not take reasonable steps to rectify the inadvertent disclosure. Noting that “the delay in seeking to remedy an inadvertent disclosure of privileged material is measured from the date the holder of the privilege discovers [ ] such disclosure,” and that “[g]enerally, a request for the return or destruction of inadvertently produced privileged materials within days after learning of the disclosure is required to sustain this second element,” the court pointed out that the plaintiff not only waited more than two months to try to rectify the error but also offered no explanation for such a lengthy delay.

Moreover, Judge Foschio stated, “Plaintiff has utterly failed to offer any explanation demonstrating that protecting belated protection of the . . . email will not be unduly prejudicial to Defendants.” Thus, because the plaintiff failed to establish any elements of the test required under the evidentiary rules, any privilege that may have attached to the disputed e-mail was waived.

Case Summary Source: Applied Discovery (free subscription required).

So, what do you think?  Should privilege have been waived or should the plaintiffs have been granted their request for the email to be returned?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Cautionary Tales: Inadvertent Disclosure Leaves Naked Short Selling Practices Exposed
 

While traveling back from Los Angeles for LegalTech West Coast 2012 (LTWC) this week, I saw an interesting story on the Above the Law blog (with references to The Economist, DeepCapture and Rolling Stone) regarding a litigation blunder committed by a major law firm on behalf of a major client, inadvertently disclosing an unredacted version of a sensitive document.

The California office of Morgan Lewis handling high-profile litigation for Goldman Sachs accidentally released an unredacted version of a document that the firm and its clients have spent years trying to keep secret.   Overstock.com sued Goldman Sachs (as well as Merrill Lynch and also other banks now no longer involved in the case), claiming that the banks caused its stock to fall through the practice of “naked” short selling (which is selling stock you don’t have and didn’t borrow, creating an artificial supply of stock shares).  The suit was dismissed by a California judge, who ruled that not enough of the alleged wrongdoing happened in the state.  According to The Economist:

“That was how things stood until the end of last week, when the defendants’ lawyers sent their opposition to a plaintiffs’ motion to the other parties in the case. One of the exhibits attached to this, presumably inadvertently, was an unredacted version of an earlier filing by Overstock, opposing the defendants’ motion to seal papers. Within this exhibit is an intriguing six-page section, “Facts Defendants Improperly Seek to Seal” (pages 14-20 of this), containing excerpts of e-mails written by Goldman and Merrill employees.”

According to DeepCapture, the responsible lawyer is alleged to be Joseph Floren, a partner at Morgan Lewis.  Ironically, Goldman and its attorneys have spent a significant amount of time (which means significant money) to keep this information sealed only to have this “blunder” release it publicly.

Matt Taibbi of Rolling Stone provides a commentary regarding information contained in the filing (language warning!), as follows:

“Now, however, through the magic of this unredacted document, the public will be able to see for itself what the banks’ attitudes are not just toward the “mythical” practice of naked short selling (hint: they volubly confess to the activity, in writing), but toward regulations and laws in general.

“Fuck the compliance area – procedures, schmecedures,” chirps Peter Melz, former president of Merrill Lynch Professional Clearing Corp. (a.k.a. Merrill Pro), when a subordinate worries about the company failing to comply with the rules governing short sales.

We also find out here how Wall Street professionals manipulated public opinion by buying off and/or intimidating experts in their respective fields. In one email made public in this document, a lobbyist for SIFMA, the Securities Industry and Financial Markets Association, tells a Goldman executive how to engage an expert who otherwise would go work for “our more powerful enemies,” i.e. would work with Overstock on the company’s lawsuit.”

A copy of the unredacted filing is located here.  Needless to say, clear naming of files as to whether they are redacted or unredacted, along with a thorough quality check, could have prevented this mistake.  I’ll leave it up to you to decide whether the mistake represents a form of karma in exposing these corporate practices.  🙂

So, what do you think?  What procedures do you have in place for avoiding inadvertent disclosures?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will take a break for Memorial Day weekend.  See you on Tuesday!

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

eDiscovery Case Law: Twitter Seeks to Succeed Where Defendant Failed
 

Yesterday, we discussed a case where the court denied a criminal defendant’s attempt to quash a subpoena of his Twitter account information.  Now it’s Twitter’s turn to file a motion to quash the court’s order.  Filed this past Monday (May 7), the motion seeks to quash the order based on the grounds that the order imposes an undue burden on Twitter for three reasons including the reason that it forces them to “violate federal law”.

In People v. Harris, No. 2011NY080152 (N.Y. Crim. Ct.), the social network filed to quash a subpoena that ordered it to turn over “any and all user information” for Twitter-user Malcolm Harris between Sept. 15 and Dec. 31, 2011.

Twitter’s counsel argued that the order violates the Fourth Amendment, which guards citizens against unreasonable search and seizures, and would force the company to violate federal law.

Twitter also stated that the order does not comply with the Uniform Act, a stance the information network conveyed to Assistant District Attorney Lee Langston in March. “Pursuant to the Uniform Act, a criminal litigant cannot compel an appearance by, or production of documents from, a California resident without presenting the appropriate certification to the California court, scheduling a hearing and obtaining a California subpoena for production,” Twitter’s legal team said in the email response.

In its motion, the company even argued that, based on Twitter’s terms of service around content ownership (Twitter users own their content), Harris has legal standing to challenge the original subpoena; the court previously ruled that he did not.

“This is a big deal. Law enforcement agencies — both the federal government and state and city entities — are becoming increasingly aggressive in their attempts to obtain information about what people are doing on the Internet,” ACLU senior staff attorney Aden Fine said in a statement.

“[The Internet] is, in some ways, the ultimate embodiment of the First Amendment. But one potential problem for free speech on the Internet is that, for almost all of us, we need to rely on Internet companies. And while the government is bound by the First Amendment, the First Amendment may not always prevent private companies from restricting our free speech rights,” Fine said. “That is why it is so important that the public — and other companies — know when a company actually stands up for its users’ rights. Twitter did so here, and Twitter should be applauded for that.”

So, what do you think?  Does Twitter make some valid arguments and will they succeed where the defendant failed?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: VentureBeat.

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

eDiscovery Case Law: Court Denies Criminal Defendant’s Attempt to Quash Twitter Subpoena
 

In People v. Harris, 2011NY080152 (N.Y. Crim. Ct. Apr. 20, 2012), 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.

In denying the defendant’s motion to quash, Judge Sciarrino analogized a subpoena issued to a third-party online social networking service like Twitter to one issued against a bank for a bank customer’s account information. The judge noted that in such bank cases a customer has “no proprietary or possessory interests” in his bank records, as they are the business records of the bank. Similarly, here, when the defendant signed up for Twitter, he agreed to certain terms, including a license that he granted to Twitter to “use, display and distribute” his Tweets. “Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his,” and therefore he had no proprietary interest in the Tweets.

Judge Sciarrino also acknowledged that although the defendant’s belief that he had a privacy interest in his own Tweets was “understandable,” it was “without merit.” The court pointed out that the “very nature and purpose” of Twitter is to help its users share information instantaneously with the world. Although a user may believe the Fourth Amendment should provide him online the same protection he would receive in his physical home, he is mistaken: Twitter users "may think that the same 'home' principle may be applied to their Twitter account. When in reality the user is sending information to the third party, Twitter. At the same time the user is also granting a license for Twitter to distribute that information to anyone, any way and for any reason it chooses."

Judge Sciarrino also denied the defendant’s motion to intervene in proceedings to quash the prosecution’s subpoena. It also found that the court is “compelled to evaluate the subpoena under federal laws governing internet communications,” that is, the Stored Communications Act; as such, the subpoena was proper because the defendant had a required hearing and notice, the information sought was relevant and material to the case, and the subpoena was not overly broad in its request.

So, what do you think?  Did the judge make the right call or should the defendant have been able to quash the subpoena?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).

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

eDiscovery Trends: EDRM and Statistical Sampling
 

I’ve been proud to be a member of The Electronic Discovery Reference Model (EDRM) for the past six years (all but the first year) and I’m always keen to report on activities and accomplishments of the various working groups within EDRM.  Since this blog was founded, we’ve reported on 1) the unveiling of the EDRM Data Set, which has become a standard for useful eDiscovery test and demo data, 2) the EDRM Metrics Privilege Survey (which I helped draft), to collect typical volumes and percentages of privileged documents throughout the industry, 3) Model Code of Conduct which focuses on the ethical duties of eDiscovery service providers, and 4) the collaboration between EDRM and ARMA and subsequent joint Information Governance white paper.  EDRM’s latest announcement yesterday is a new guide, Statistical Sampling Applied to Electronic Discovery, which is now available for review and comment. 

As EDRM notes in their announcement, “The purpose of the guide is to provide guidance regarding the use of statistical sampling in e-discovery contexts. Most of the material is definitional and conceptual, and is intended for a broad audience. The later material and the accompanying spreadsheet provide additional information, particularly technical information, to people in e-discovery roles who become responsible for developing further expertise in this area.”

The Guide is comprised of six sections, as follows:

  1. Introduction: Includes basic concepts and definitions, alludes to mathematical techniques to be discussed in more detail in subsequent sections, identifies potential eDiscovery situations where sampling techniques may be useful and identifies areas not covered in this initial guide.
  2. Estimating Proportions within a Binary Population: Provides some common sense observations as to why sampling is useful, along with a straightforward explanation of statistical terminology and the interdependence of sample size, margin of error/confidence range and confidence level.
  3. Guidelines and Considerations: Provides guidelines for effective statistical sampling, such as cull prior to sampling, account for family relationships, simple vs. stratified random sampling and use of sampling in machine learning, among others.
  4. Additional Guidance on Statistical Theory: Covers mathematical concepts such as binomial distribution, hypergeometric distribution, and normal distribution.  Bring your mental “slide-rule”!
  5. Examples Using the Accompanying Excel Spreadsheet: Describes an attached workbook (EDRM Statistics Examples 20120427.xlsm) that contains six sheets that include a notes section as well as basic, observed and population normal approximation models and basic and observed binomial methods to assist in learning these different sampling methods.
  6. Validation Study: References a Daegis article that provides an empirical study of sampling in the eDiscovery context.  In addition to that article, consider reading our previous posts on determining an appropriate sample size to test your search, how to generate a random selection and a practical example to test your search using sampling.

Comments can be posted at any of the EDRM Statistical Sampling pages, or emailed to the group at mail@edrm.net.  As a big proponent of statistical sampling as an effective and cost-effective method for verifying results, I’m very interested to see where this guide goes and how people will use it.  BTW, EDRM’s Annual Kickoff Meeting is next week (May 16 and 17) in St. Paul, MN – it’s not too late to become a member and help shape the future of eDiscovery with other industry leaders!

So, what do you think?  Do you perform statistical sampling to verify results within your eDiscovery process?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: No Race Tires on This Vehicle, Taxation of eDiscovery Costs Granted
 

The trend for defendants requesting plaintiffs to be responsible for eDiscovery costs when they lose is continuing.  Sometimes that request is granted, at least partially, as in this case and this case.  In another case, taxation of eDiscovery costs was initially granted, but then reversed due to the parties' agreement to split the costs.  Then, there’s the case of Race Tires America, Inc. v. Hoosier Racing Tire Corporation.  Last May, the winning defendants were awarded $367,000 as reimbursement for eDiscovery costs.  (Hoosier Daddy!)  But, then in March of this year, an appellate court reversed all but $30,370 of those costs, implementing a narrow interpretation of 28 U.S.C. § 1920(4) for assigning those costs.  Now, a new case addresses the issue of taxation of costs once again.

In the case In re Online DVD Rental Antitrust Litig., No. M 09-2029 PJH, (N.D. Cal. Apr. 20, 2012), a federal court recently broadly interpreted the language in the federal statute governing the taxation of costs, 28 U.S.C. § 1920(4).

In this class action involving claims that Netflix had reached an agreement with Walmart to divide the market for sales and online rentals of DVDs, Netflix won summary judgment and filed a motion seeking to recover its costs, including those relating to eDiscovery. After the clerk awarded the costs, the plaintiff subscribers filed a motion with the court seeking review of the award.

In denying the plaintiffs’ request to limit the costs, the court rejected the Third Circuit’s narrow view of 28 U.S.C. § 1920(4) as expressed in its recent decision in the Race Tires America, Inc. v. Hoosier Racing Tire Corp. case, which vacated the district court’s approval of many eDiscovery costs. Although the court noted the Third Circuit’s “well-reasoned opinion,” the California court concluded that “in the absence of directly analogous Ninth Circuit authority, and in view of the court’s prior order in connection with the Blockbuster subscriber plaintiffs’ motion for review of the clerk's taxation of costs, broad construction of section 1920 with respect to electronic discovery production costs—under the facts of this case—is appropriate.” Ultimately, the court awarded the defendants slightly more than $700,000 in costs.

So, what do you think?  Will this ruling isolate the Race Tires case as an anomaly?  Will our monthly Netflix subscription rates go down?  (Probably not.)  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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