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eDiscovery Case Law: Court Rules Exact Search Terms Are Limited
 

In Custom Hardware Eng’g & Consulting v. Dowell, 2012 U.S. Dist. LEXIS 146, 7-8 (E.D. Mo. Jan. 3, 2012), the plaintiff and defendant could not agree on search terms to be used for discovery on defendant’s forensically imaged computers.  The court directed each party to submit a proposed list of search terms and indicated that each party would be permitted to file objections to the opposing party's proposed list.  After reviewing the proposals, and the defendant’s objections to the plaintiff’s proposed list, the court ruled that the defendant’s proposed list was “problematic and inappropriate” and that their objections to the plaintiff’s proposed terms were “without merit” and ruled for use of the plaintiff’s search terms in discovery.

Plaintiff alleged the defendants formed a competing company by “illegally accessing, copying, and using Plaintiff's computer software and data programming source code systems” and sued defendants for copyright infringement, trade secret misappropriation, breach of contract and other claims.  The court ordered discovery of ESI on defendants' computers through use of a forensic process to recover and then search the ESI.  In July 2011, the plaintiffs provided a request for production to defendants that requested “any and all documents which contain, describe, and/or relate in any manner to any of the words, phrases and acronyms, or derivatives thereof, contained in the list [provided], irrespective of whether exact capitalization, alternative spelling, or any other grammatical standard was used.”  The defendants submitted their own proposed list, which “excludes irrelevant information by requiring precise matches between search terms and ESI”.

Referencing Victor Stanley (previous blog posts regarding that case here, here, here and here), Missouri District Court Judge Richard Webber noted in his ruling that “While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-known limitations and risks associated with them.”  Quoting from The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, the court noted that keyword searches “capture many documents irrelevant to the user's query…but at the same time exclude common or inadvertently misspelled instances” of the search terms.

The defendant issued three objections to the plaintiff’s terms, which the court addressed as follows:

  • Plaintiffs’ Terms would Include an Unreasonable Number of Irrelevant Results: Assuming that the argument was based on a contention by the defendants that the discovery would be overly burdensome, the court noted that the “burden or expense of conducting such a search must be low, and Defendants have presented the Court with no evidence that suggests otherwise.”
  • Plaintiffs' Terms would Produce Privileged Results: The Court noted that a producing party can create a privilege log to exclude documents that would otherwise fit the search term results.
  • Some of Plaintiffs' terms will Encompass Only Irrelevant Information: Noting that the defendants' “objection is a conclusory statement, stated without any argumentation or other support”, the Court found that a search of these terms may produce "matter that is relevant to any party's claim or defense”.

The Court also found that the defendants' proposed list would be “problematic and inappropriate” and “would fail to produce discoverable ESI simply because of an inexact match in capitalization or phrasing between a search term and the ESI” and rejected that list, ordering use of the plaintiff’s list for searching.

So, what do you think?  Was that the right call, or was the plaintiff’s request overbroad?  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 Best Practices: Preparing Your 30(b)(6) Witnesses
 

When it comes to questions and potential issues that the receiving party may have about the discovery process of the producing party, one of the most common and direct methods for conducting “discovery about the discovery” is a deposition under Federal Rule 30(b)(6). This rule enables a party to serve a deposition notice on the entity involved in the litigation rather than an individual. The notice identifies the topics to be covered in the deposition, and the entity being deposed must designate one or more people qualified to answer questions on the identified topics.

While those designated to testify may not necessarily have day-to-day responsibility related to the identified topics, they must be educated enough in those issues to sufficiently address them during the testimony. Serving a deposition notice on the entity under Federal Rule 30(b)(6) saves the deposing party from having to identify specific individual(s) to depose while still enabling the topics to be fully explored in a single deposition.

Topics to be covered in a 30(b)(6) deposition can vary widely, depending on the facts and circumstances of the case. However, there are some typical topics that the deponent(s) should be prepared to address.

Legal Hold Process: Perhaps the most common area of focus in a 30(b)(6) deposition is the legal hold process as spoliation of data can occur when the legal hold process is unsound and data spoliation is the most common cause of sanctions resulting from the eDiscovery process.  Issues to address include:

  • General description of the legal hold process including all details of that policy and specific steps that were taken in this case to effectuate a hold.
  • Timing of issuing the legal hold and to whom it was issued.
  • Substance of the legal hold communication (if the communication is not considered privileged).
  • Process for selecting sources for legal hold, identification of sources that were eliminated from legal hold, and a description of the rationale behind those decisions.
  • Tracking and follow-up with the legal hold sources to ensure understanding and compliance with the hold process.
  • Whether there are any processes in place in the company to automatically delete data and, if so, what steps were taken to disable them and when were those steps taken?

Collection Process: Logically, the next eDiscovery step discussed in the 30(b)(6) deposition is the process for collecting preserved data:

  • Method of collecting ESI for review, including whether the method preserved all relevant metadata intact.
  • Chain of custody tracking from origination to destination.

Searching and Culling: Once the ESI is collected, the methods for conducting searches and culling the collection down for review must be discussed:

  • Method used to cull the ESI prior to review, including the tools used, the search criteria for inclusion in review and how the search criteria was developed (including potential use of subject matter experts to flush out search terms).
  • Process for testing and refining search terms used.

Review Process: The 30(b)(6) witness(es) should be prepared to fully describe the review process, including:

  • Methods to conduct review of the ESI including review application(s) used and workflow associated with the review process.
  • Use of technology to assist with the review, such as clustering, predictive coding, duplicate and near-duplicate identification.
  • To the extent the process can be described, methodology for identifying and documenting privileged ESI on the privilege log (this methodology may be important if the producing party may request to “claw back” any inadvertently produced privileged ESI).
  • Personnel employed to conduct ESI review, including their qualifications, experience, and training.

Production Process: Information regarding the production process, including:

  • Methodology for organizing and verifying the production, including confirmation of file counts and spot QC checks of produced files for content.
  • The total volume of ESI collected, reviewed, and produced.

Depending on the specifics of the case and discovery efforts, there may be further topics to be addressed to ensure that the producing party has met its preservation and discovery obligations.

So, what do you think?  Have you had to prepare 30(b)(6) witnesses for deposition?  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: Burn Your Computer and the Court Will Burn You
 

In Evans v. Mobile Cnty. Health Dept., No. CA 10-0600-WS-C, (S.D. Ala. Jan. 24, 2012), Alabama Magistrate Judge William Cassady granted a motion for sanctions, including an adverse inference instruction, where the plaintiff had burned and destroyed her computer that she used during the time she claimed she was harassed.

Evans sued the Mobile County Health Department alleging reverse discrimination. The court entered a scheduling order that instructed Evans to preserve all relevant information. In discovery, the health department asked Evans for all documents, including electronically stored information (ESI), related to her claims.

Initially, Evans did not produce any documents in response to the defendant's request, but at her deposition, she produced a small number of documents and admitted that she had others, including e-mails. After her deposition, the defendant renewed its request for Evans to produce all ESI in her possession and asked to inspect her personal computer. When the plaintiff did not comply, the defendant filed a motion to compel.

After the motion was filed, Evans' counsel told the defendant that Evans had destroyed her computer. Evans explained that her computer crashed about eight months after her complaint was filed. When she sought help from computer experts, who told her to buy another computer, she burned her computer to destroy the personal information it contained due to the "threat of identity theft." She then bought a new computer. The defendant filed a motion for sanctions and sought dismissal of the case.

Judge Cassady granted the defendant's motion to compel, finding that the plaintiff's claims that she had produced all relevant ESI difficult to believe in light of her deposition testimony and her other discovery violations. Accordingly, Judge Cassady required Evans to produce e-mails from her gmail account and a notebook she referenced in her deposition that contained relevant evidence. The plaintiff also had to produce her new computer for inspection and pay for the defendant's fees and costs in bringing the motion.

Judge Cassady also granted defendant's request for sanctions. In determining the appropriate punishment, he looked first to Eleventh Circuit law, but the court had not set forth specific guidelines for the imposition of sanctions. Therefore, Judge Cassady applied Alabama state law, since it was consistent with general federal spoliation standards. Alabama law requires courts to consider five factors in analyzing a request for sanctions: "(1) the importance of the evidence destroyed; (2) the culpability of the offending party; (3) fundamental fairness; (4) alternative sources of the information obtainable from the evidence destroyed; and (5) the possible effectiveness of other sanctions less severe than dismissal."

Judge Cassady found that Evans had destroyed the evidence in bad faith: her culpability was "excessively high." However, the judge stopped short of dismissing the case. Since the defendant could still defend itself against Evans' allegations, the magistrate judge decided that the court would give the jury an adverse inference instruction at trial. It also awarded defendant its attorneys' fees and costs for the motion.

So, what do you think?  Should the case have been dismissed or were the sanctions sufficient?  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 Case Law: Fifth Amendment Doesn’t Extend to Encrypted Hard Drives – Or Does It?
 

In the case U.S. v. Fricosu, Colorado district judge Robert Blackburn has ruled that a woman must produce an unencrypted version of her Toshiba laptop's hard drive to prosecutors in a mortgage fraud case for police inspection.  The woman, Ramona Fricosu, had argued that the Fifth Amendment's privilege against self-incrimination protected her from having to disclose the password to her hard drive, which was encrypted using PGP Desktop and seized when investigators served a search warrant on her home.

The day the search warrant was carried, Fricosu spoke with her imprisoned ex-husband Scott (indicted with Fricosu in the case) by phone. The conversation was recorded, and Fricosu implied that relevant information could be found on the encrypted laptop:

Scott: (SC [simultaneous conversation]) oh yeah that’s right it was on your laptop wasn’t it

Ramona: I think so but I’m not sure

Scott: OK

Ramona: yeah cause they kept asking me for passwords and I said, ya know no I just didn’t answer them

Scott: right (SC). Because when you went there you took your laptop

Ramona: yeah I think so I think I did

Scott: and so (SC) it would been on there

Ramona: yeah

Scott: OK

Ramona: and my lawyer said I’m not obligated by law to give them any passwords or anything they need to figure things out for themselves

Based on this conversation, the government sought a warrant under the “All Writs Act, 28 U.S.C. § 1651, requiring Ms. Fricosu to produce the unencrypted contents of the computer.”  Fricosu declined, “asserting her privilege against self-incrimination under the Fifth Amendment”.

In providing his ruling, Judge Blackburn referenced In re Grand Jury Subpoena to Boucher in which child pornography was identified on the defendant's laptop during a border search in Vermont. When the laptop was later seized, it was determined to be password protected. A magistrate judge initially sided with the defendant finding that he could not be compelled to reveal the contents of his mind, which is what the act of producing the password would be.  Revising the grand jury’s request to require the defendant to produce, not the password itself, but rather an unencrypted version of the drive, a Vermont District judge granted that request.

With that case as precedent, Judge Blackburn ruled that Fricosu was required to provide the government in this case with an unencrypted copy of the Toshiba laptop computer’s hard drive.  However, Judge Blackburn also ruled that the government would be “precluded from using Ms. Fricosu’s act of production of the unencrypted contents of the computer’s hard drive against her in any prosecution”.

Fricosu’s attorney has indicated he plans to appeal the ruling and noted that his client may not even be able to decrypt the hard drive, stating “If that's the case, then we'll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do”.

So, what do you think?  Should production of the hard drive have been compelled?  Does the preclusion from using evidence from the hard drive against her in prosecution address any Fifth Amendment concerns?  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.

Social Tech eDiscovery: Facebook Law Enforcement Policies Revisited

One of the very first posts we published on this blog, over 16 months ago, was a post regarding Facebook’s Subpoena Policy, describing and providing a link to Facebook’s Law Enforcement page to request information from Facebook.  With numerous cases involving discovery of information on Facebook, (including this one, this one, this one, this one, this one and this one – all just in the past year), it seems appropriate to revisit this page to see if anything has changed.

The first thing that has changed is the link itself.  The old link we published 16 months ago no longer takes you to that page – it defaults to the general Facebook help page.  So, I had to “go hunting” for the new location for the law enforcement page.  It took a few tries, but I did finally find it here.  If you prefer your Facebook Law Enforcement information in downloadable document form, the link to the PDF is here.

The page has a lot more information than the old page.  Sections include:

  • US Legal Process Requirements: Notes that Facebook discloses account records solely in accordance with their terms of service and applicable law, including the federal Stored Communications Act (“SCA”), 18 U.S.C. Sections 2701-2712, which requires a valid subpoena, court order or search warrant to compel disclosure of Facebook content.
  • International Legal Process Requirements: A Mutual Legal Assistance Treaty request or letter rogatory may be required to compel the disclosure of the contents of an account.  More information found here.
  • Account Preservation: Link to form to request preservation of account records for up to 90 days pending receipt of formal legal requests.
  • Emergency Requests: Email address for a law enforcement official to obtain an emergency request form in cases “involving imminent harm”.
  • Child Safety Matters: What to do when requests relate to child exploitation or safety concerns.
  • Data Retention and Availability: Reiteration that Facebook does “not retain data for law enforcement purposes unless we receive a valid preservation request before a user has deleted that content from our service”, with links to 1) how a Facebook user can request their account to be permanently deleted (with no recovery), 2) Facebook’s Statement of Rights and Responsibilities and 3) Facebook’s Data Use Policy.
  • Form of Requests: Information required with requests for information, including 1) name of the issuing authority, badge/ID number of responsible agent, email address from a law-enforcement domain, and direct contact phone number; 2) email address, user ID number or username of the Facebook profile.
  • User Consent: Instructions for users who have consented to provide their own information to law enforcement officials using Facebook’s Download Your Information feature (previously featured on this blog here).
  • Notification: What to do if officials believe that notification would jeopardize an investigation.
  • Testimony: Facebook’s declaration that they do not provide expert testimony support, but if “a special form of certification is required”, the requestor should attach it to the records request.
  • Cost Reimbursement: Facebook’s statement that they “may seek reimbursement for costs in responding to requests for information as provided by law”, without specifying what those costs might be (which is different than the specific costs stated in the previous page).
  • Contact Information: To submit records requests via email, snail mail or fax – but only if you’re a law enforcement officer.

So, what do you think?  Have you needed to request information from Facebook for litigation purposes?  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: Appeals Court Decides Spoliation Finding For Not Producing Originals is Bull
 

Including yesterday’s post, this seems to be the week for Third Circuit appeal cases…

In Bull v. UPS Inc., No. 10-4339 (3d Cir. Jan. 4, 2012), the Third Circuit court conceded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information”.  However, it found that in this case, the District Court erred in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.

During a jury trial of a claim of disability discrimination under New Jersey law, the plaintiff (a former UPS employee) testified about two notes that she received from her doctor and faxed to UPS, regarding her neck and shoulder injury. When UPS challenged the authenticity of those notes and sought to block the admission of the faxed copies, the employee's attorney indicating that the original notes no longer existed.  However, the plaintiff testified during examination that she actually still had originals at home.  As a result, the District Court declared a mistrial and encouraged the defendant to file a motion for sanctions.  The plaintiff produced the original doctor’s notes to the court and after considering defendant’s motion for sanctions, the District Court invoked its authority and ordered the case dismissed with prejudice.  Plaintiff appealed.

After carefully examining the record and determining that there was insufficient evidence that the employee intentionally withheld the original notes, the Third Circuit reversed the sanctions, finding doubt whether or not UPS ever properly requested the original documents; and if so, whether plaintiff's counsel ever communicated those requests.

However, the Third Circuit court recognized, in footnote, a “growing concern not implicated in this case”:

“This highlights a growing concern for us that is not directly implicated in this case.  As electronic document technology progresses, the concept of an “original” document is becoming more abstract.  Moving from the more easily distinguishable photocopy or facsimile to documents created, transmitted and stored in an electronic form means that it will be increasingly difficult to ascertain where the boundary of an objectively reasonable duty to preserve such documents lies.  There are—and increasingly will be—circumstances in which the foreseeability of a duty to preserve the information contained in a particular document is distinguishable—under an objective analysis—from the need to preserve that information in its “original” form or format.  Indeed, arriving at a common understanding of what an “original” is in this context is challenging enough.  Although it does, and always will rest with the courts to preserve the distinction between an objectively foreseeable duty and actual knowledge of such a duty, there is a concomitant obligation that counsel must assume to clearly and precisely articulate the need for parties to search for, maintain, and—where necessary—produce “original” or source documents.  This case gives us one more opportunity to highlight our position that clarity in communications from counsel that establish a record of a party's actual knowledge of this duty will ensure that this technology-driven issue does not consume an unduly large portion of the court's attention in future litigation.”

So, what do you think?  Should the sanctions have been reversed?  Or should the producing party be required to produce originals whether they were clearly requested or not?  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 Denies Plaintiff Request For Additional Searches for Acronyms
 

In the case In Re: National Association of Music Merchants, Musical Instruments and Equipment Antitrust Litigation, MDL No. 2121 (Dec. 19, 2011), U.S. Magistrate Judge Louisa S. Porter considered a motion by the plaintiffs seeking to compel the defendants to run document searches containing abbreviations and acronyms identified during discovery.  Ruling that the plaintiffs had “ample opportunity” to obtain this discovery earlier in the case, the court denied the motion.

The defendants notified the plaintiffs that they intended to use keyword searches to find relevant documents to plaintiffs’ discovery requests and asked the plaintiffs to provide search terms.  However, the plaintiffs indicated that they could not provide the terms, lacking sufficient information at that point to construct meaningful searches. So, the defendants created their own list of search terms, which they then reviewed with the plaintiffs, who protested that the terms were too restrictive and were unlikely to capture some highly relevant documents. As a result, both sides sat down and negotiated a list of agreed-upon search terms, including several terms specifically targeted to capturing defendant-to-defendant communications.

The defendants began to produce documents based on the agreed-upon terms. Through review of those produced documents, the plaintiffs discovered the frequent use of abbreviations and acronyms and filed a motion seeking to compel the defendants to run document searches containing these abbreviations and acronyms.

While the court noted that keyword searching should be “a cooperative and informed process” and emphasized the importance of “a full and transparent discussion among counsel of the search terminology”, the court chastised the plaintiffs, noting:

“Here, the Court finds Plaintiffs had ample opportunity to obtain discovery regarding abbreviations and acronyms of Defendant companies, and the burden or expense to Defendants in having to comply with Plaintiffs’ request regarding abbreviations and acronyms outweighs its likely benefit. … First, Plaintiffs had two separate opportunities to suggest that Defendants search for abbreviations and acronyms of the Defendant companies; initially, before Defendant’s produced documents; and second, during negotiations between the parties on agreed-upon expanded search terms. In the spirit of the conclusions made at the Sedona Conference, and in light of the transparent discussion among counsel of the search terminology and subsequent agreement on the search method, the Court finds it unreasonable for Defendant to re-search documents they have already searched and produced.

Second, after meeting and conferring with Plaintiffs, and relying on their agreement with Plaintiffs regarding search terms, Defendants have already searched and produced a significant number of documents, thereby incurring significant expenses during this limited discovery period. Further, as articulated by Defendants, the new search terms Plaintiffs have proposed would require some Defendants to review tens of thousands of additional documents that would likely yield only a very small number of additional responsive documents. Therefore, the Court finds a re-search of documents Defendants have already searched and produced is overly burdensome.”

As a result, the court denied the plaintiffs’ request to “run document searches containing abbreviations and acronyms for agreed-upon search terms concepts”.

So, what do you think?  Should the plaintiffs’ have been able to anticipate the abbreviations and acronyms during negotiations or should their motion have been granted to add them later?  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: Via Rule 45 Subpoena, Plaintiff Allowed to Search Non-Party Personal Hard Drive
 

A party can subpoena a nonparty to provide a personal computer for the forensic review of electronically stored information (ESI) under Rule 45 of the Federal Rules of Civil Procedure.

In Wood v. Town of Warsaw, N.C., No. 7:10-CV-00219-D, (E.D.N.C. Dec. 22, 2011), a former police chief alleged his former employer unfairly terminated him because of his age under the Age Discrimination in Employment Act. During discovery, the plaintiff sent a non-party subpoena to the former town hall manager, who the plaintiff claimed was responsible for his termination. In the subpoena, the plaintiff asked that the former town manager make his personal computer available for a search by a forensic expert using agreed-upon search terms. He also offered to pay for the cost of the search, excluding any privilege review that the town manager wanted to conduct.

The town manager objected to the subpoena and attempted to modify it, claiming the search would be expensive, would be time-consuming, and would invade his privacy. He also claimed he did not use his personal computer for work. He offered to search the computer himself and provide any documents that were responsive to the plaintiff’s requests in the subpoena.

The court reviewed Rule 45 of the Federal Rules of Civil Procedure, which required it to balance three factors in deciding whether to modify or quash a subpoena: (1) the relevance of the information sought, (2) the plaintiff’s need for the information, and (3) the potential hardship to the non-party. In doing so, it concluded that the plaintiff’s narrow request for “non-privileged documents identified by an electronic search for key words related to the claims and defenses asserted by the parties” was reasonable. The court also noted that “in this age of smart phones and telecommuting, it is increasingly common for work to be conducted outside of the office and through the use of personal electronic devices.” Therefore, it was reasonable to expect to find relevant ESI on the town manager’s computer. Finally, the fact that the plaintiff assumed all of the costs except the privilege review minimized the burden on the town manager.

The court also noted that the subpoena’s requests were limited to tangible documents, not including ESI, and would thus not “encompass the information sought by the request to search [the town manager’s] hard drive.”

Therefore, it ruled that the subpoena was proper but modified it to clarify that the plaintiff was not entitled to the complete contents of the hard drive—just to those responsive to the search terms that were neither privileged nor confidential.

So, what do you think?  Should the search have been allowed?  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: Our 2012 Predictions
 

Yesterday, we evaluated what others are saying and noted popular eDiscovery prediction trends for the coming year.  It’s interesting to identify common trends among the prognosticators and also the unique predictions as well.

But we promised our own predictions for today, so here they are.  One of the nice things about writing and editing a daily eDiscovery blog is that it forces you to stay abreast of what’s going on in the industry.  Based on the numerous stories we’ve read (many of which we’ve also written about), and in David Letterman “Top 10” fashion, here are our eDiscovery predictions for 2012:

  • Still More ESI in the Cloud: Frankly, this is like predicting “the Sun will be hot in 2012”.  Given the predictions in cloud growth by Forrester and Gartner, it seems inevitable that organizations will continue to migrate more data and applications to “the cloud”.  Even if some organizations continue to resist the cloud movement, those organizations still have to address the continued growth in usage of social media sites in business (which, last I checked, are based in the cloud).  It’s inevitable.
  • More eDiscovery Technology in the Cloud As Well: We will continue to see more cloud offerings for eDiscovery technology, ranging from information governance to preservation and collection to review and production.  With the need for corporations to share potentially responsive ESI with one or more outside counsel firms, experts and even opposing counsel, cloud based Software-as-a-Service (SaaS) applications are a logical choice for sharing that information effortlessly without having to buy software, hardware and provide infrastructure to do so.  Every year at LegalTech, there seems to be a few more eDiscovery cloud providers and this year should be no different.
  • Self-Service in the Cloud: So, organizations are seeing the benefits of the cloud not only for storing ESI, but also managing it during Discovery.  It’s the cost effective alternative.  But, organizations are demanding the control of a desktop application within their eDiscovery applications.  The ability to load your own data, add your own users and maintain their rights, create your own data fields are just a few of the capabilities that organizations expect to be able to do themselves.  And, more providers are responding to those needs.  That trend will continue this year.
  • Technology Assisted Review: This was the most popular prediction among the pundits we reviewed.  The amount of data in the world continues to explode, as there were 988 exabytes in the whole world as of 2010 and Cisco predicts that IP traffic over data networks will reach 4.8 zettabytes (each zettabyte is 1,000 exabytes) by 2015.  More than five times the data in five years.  Even in the smaller cases, there’s simply too much data to not use technology to get through it all.  Whether it’s predictive coding, conceptual clustering or some other technology, it’s required to enable attorneys manage the review more effectively and efficiently.
  • Greater Adoption of eDiscovery Technology for Smaller Cases: As each gigabyte of data is between 50,000 and 100,000 pages, a “small” case of 4 GB (or two max size PST files in Outlook® 2003) can still be 300,000 pages or more.  As “small” cases are no longer that small, attorneys are forced to embrace eDiscovery technology for the smaller cases as well.  And, eDiscovery providers are taking note.
  • Continued Focus on International eDiscovery:  So, cases are larger and there’s more data in the cloud, which leads to more cases where Discovery of ESI internationally becomes an issue.  The Sedona Conference® just issued in December the Public Comment Version of The Sedona Conference® International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation, illustrating how important an issue this is becoming for eDiscovery.
  • Prevailing Parties Awarded eDiscovery Costs: Shifting to the courtroom, we have started to see more cases where the prevailing party is awarded their eDiscovery costs as part of their award.  As organizations have pushed for more proportionality in the Discovery process, courts have taken it upon themselves to impose that proportionality through taxing the “losers” for reimbursement of costs, causing prevailing defendants to say: “Sue me and lose?  Pay my costs!”.
  • Continued Efforts and Progress on Rules Changes: Speaking of proportionality, there will be continued efforts and progress on changes to the Federal Rules of Civil Procedure as organizations push for clarity on preservation and other obligations to attempt to bring spiraling eDiscovery costs under control.  It will take time, but progress will be made toward that goal this year.
  • Greater Price/Cost Control Pressure on eDiscovery Services: In the meantime, while waiting for legislative relief, organizations will expect the cost for eDiscovery services to be more affordable and predictable.  In order to accommodate larger amounts of data, eDiscovery providers will need to offer simplified and attractive pricing alternatives.
  • Big Player Consolidation Continues, But Plenty of Smaller Players Available: In 2011, we saw HP acquire Autonomy and Symantec acquire Clearwell, continuing a trend of acquisitions of the “big players” in the industry.  This trend will continue, but there is still plenty of room for the “little guy” as smaller providers have been pooling resources to compete, creating an interesting dichotomy in the industry of few big and many small providers in eDiscovery.

So, what do you think?  Care to offer your own predictions?  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 Trends: 2012 Predictions – By The Numbers

With a nod to Nick Bakay, “It’s all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year.  I know what you’re thinking – “oh no, not another set of eDiscovery predictions!”  However, at eDiscovery Daily, we do things a little bit differently.  We like to take a look at other predictions and see if we can spot some common trends among those before offering some of our own (consider it the ultimate “cheat sheet”).  So, as I did last year, I went “googling” for 2012 eDiscovery predictions, and organized the predictions into common themes.  I found eDiscovery predictions here, here, here, here, here, here and Applied Discovery.  Oh, and also here, here and here.  Ten sets of predictions in all!  Whew!

A couple of quick comments: 1) Not all of these are from the original sources, but the links above attribute the original sources when they are re-prints.  If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment.  2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out.  Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

  • Technology Assisted Review: Nine out of ten “prognosticators” (up from 2 out of 7 last year) predicted a greater emphasis/adoption of technological approaches.  While some equate technology assisted review with predictive coding, other technology approaches such as conceptual clustering are also increasing in popularity.  Clearly, as the amount of data associated with the typical litigation rises dramatically, technology is playing a greater role to enable attorneys manage the review more effectively and efficiently.
  • eDiscovery Best Practices Combining People and Technology: Seven out of ten “augurs” also had predictions related to various themes associated with eDiscovery best practices, especially processes that combine people and technology.  Some have categorized it as a “maturation” of the eDiscovery process, with corporations becoming smarter about eDiscovery and integrating it into core business practices.  We’ve had numerous posts regarding to eDiscovery best practices in the past year, click here for a selection of them.
  • Social Media Discovery: Six “pundits” forecasted a continued growth in sources and issues related to social media discovery.  Bet you didn’t see that one coming!  For a look back at cases from 2011 dealing with social media issues, click here.
  • Information Governance: Five “soothsayers” presaged various themes related to the promotion of information governance practices and programs, ranging from a simple “no more data hoarding” to an “emergence of Information Management platforms”.  For our posts related to Information Governance and management issues, click here.
  • Cloud Computing: Five “mediums” (but are they happy mediums?) predict that ESI and eDiscovery will continue to move to the cloud.  Frankly, given the predictions in cloud growth by Forrester and Gartner, I’m surprised that there were only five predictions.  Perhaps predicting growth of the cloud has become “old hat”.
  • Focus on eDiscovery Rules / Court Guidance: Four “prophets” (yes, I still have my thesaurus!) expect courts to provide greater guidance on eDiscovery best practices in the coming year via a combination of case law and pilot programs/model orders to establish expectations up front.
  • Complex Data Collection: Four “psychics” also predicted that data collection will continue to become more complex as data sources abound, the custodian-based collection model comes under stress and self-collection gives way to more automated techniques.

The “others receiving votes” category (three predicting each of these) included cost shifting and increased awards of eDiscovery costs to the prevailing party in litigation, flexible eDiscovery pricing and predictable or reduced costs, continued focus on international discovery and continued debate on potential new eDiscovery rules.  Two each predicted continued consolidation of eDiscovery providers, de-emphasis on use of backup tapes, de-emphasis on use of eMail, multi-matter eDiscovery management (to leverage knowledge gained in previous cases), risk assessment /statistical analysis and more single platform solutions.  And, one predicted more action on eDiscovery certifications.

Some interesting predictions.  Tune in tomorrow for ours!

So, what do you think?  Care to offer your own “hunches” from your crystal ball?  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.