Review Archives

Document Reviewers are People Too, Even in Canada, eh?: eDiscovery Trends

March 25, 2015

A couple of weeks ago, a $384 million class action was filed in Canada against professional services firm Deloitte LLP on behalf of hundreds of lawyers working at a document-review company it acquired last year. Even in Canadian dollars, that’s a lot.

As reported on by Canadian Lawyer’s blog Legal Feeds (Document review workers launch class action against Deloitte), on March 9, Canadian document review attorney Shireen Sondhi filed suit against Deloitte, which acquired ATD Legal Services in 2014, alleging document review attorneys were improperly classified as independent contractors (thereby exempt from protection under the Employment Standards Act).

Sondhi claims she and her colleagues were for years denied statutory labor protections, such as notice of termination. She also claims that they were also deprived of entitlements such as vacation pay and overtime – with even bathroom breaks docked from their overall compensation.

Despite the absence of statutory protections, the plaintiff alleges she and her class members agreed to the onerous conditions because they could ill afford to make demands of their employer amid Canada’s cutthroat legal jobs market.

“For many young lawyers, saddled with staggering student debt and desperate not to leave the field of law, document review is a last resort,” the statement of claim reads. “Deloitte is one of only a few document review companies in Ontario, and for many Class Members, represents their sole source of income.”

“These workers were supervised in Deloitte’s offices, they didn’t provide their own tools, or control their own schedules,” said plaintiff’s counsel Andrew Monkhouse in a statement. “It is simple logic that a lawyer, hired into a non-legal job, would be eligible for every protection under the law that non-lawyers are afforded.”

The conflict between Sondhi and her employer arose after Deloitte acquired ATD in January 2014. The claim alleges that, upon Deloitte’s acquisition, the new parent company imposed terms on document review workers that suggested a tacit acknowledgment of potential liability.

Deloitte required document reviewers to contract to an intermediary, Procom Consultants Group (also named in the suit), which then began withholding employment insurance (EI) and Canada Pension Plan (CPP) deductions. The claim alleges this intermediary served to minimize Deloitte’s liability.

Procom then charged Deloitte a fee amounting to $3 per hour – a charge passed on to the document reviewers, who received no benefit from the arrangement. All told, the fee, along with the EI and CPP deductions, reduced the take-home pay of document reviewers from $50 per hour to just over $40 per hour.

A major part of the dispute is whether document review is considered legal work. As reported in Law Times earlier this month, Sondhi says an amended Deloitte contract later took out a clause that deemed the document review work to be non-legal but described it as a “data processing and computer services” function that still doesn’t require LawPRO liability insurance. At that point, Sondhi says she sent an e-mail to the management team expressing the concerns she still had.

“I got this e-mail back from an employee at Procom saying, ‘Deloitte is not prepared to change the contract any further. Either you sign the contract or you consider your relationship terminated. Don’t come into the office tomorrow morning,’” she says. “So I wrote back and said, ‘I’m not comfortable with this. You haven’t answered my question, and I will not be signing the contract.’”

“I was shocked that Deloitte went as far as terminating me for vocalizing opposition to the Procom contract,” said Sondhi in a statement. “The entire situation reinforced to me just how great the power disparity was between Deloitte and I.”

So, what do you think? Does the class of document reviewers have a case? Should the work that document reviewers perform be considered legal work? 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. eDiscoveryDaily 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. 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.

Judge Peck Wades Back into the TAR Pits with ‘Da Silva Moore Revisited’: eDiscovery Case Law

March 12, 2015

In Rio Tinto Plc v. Vale S.A., 14 Civ. 3042 (RMB)(AJP) (S.D.N.Y. Mar. 2, 2015), New York Magistrate Judge Andrew J. Peck approved the proposed protocol for technology assisted review (TAR) presented by the parties, but made it clear to note that “the Court’s approval ‘does not mean. . . that the exact ESI protocol approved here will be appropriate in all [or any] future cases that utilize [TAR].’”

Judge’s Opinion

Judge Peck began by stating that it had been “three years since my February 24, 2012 decision in Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182 (S.D.N.Y. 2012)” (see our original post about that case here), where he stated:

“This judicial opinion now recognizes that computer-assisted review [i.e., TAR] is an acceptable way to search for relevant ESI in appropriate cases.”

Judge Peck then went on to state that “[i]n the three years since Da Silva Moore, the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” (Here are links to cases we’ve covered related to TAR in the last three years). He also referenced the Dynamo Holdings case from last year, calling it “instructive” in its approval of TAR, noting that the tax court ruled that “courts leave it to the parties to decide how best to respond to discovery requests”.

According to Judge Peck, the TAR issue still to be addressed overall “is how transparent and cooperative the parties need to be with respect to the seed or training set(s)”, commenting that “where the parties do not agree to transparency, the decisions are split and the debate in the discovery literature is robust”. While observing that the court “need not rule on the need for seed set transparency in this case, because the parties agreed to a protocol that discloses all non-privileged documents in the control sets”, Judge Peck stated:

“One point must be stressed — it is inappropriate to hold TAR to a higher standard than keywords or manual review. Doing so discourages parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review.”

While approving the parties’ TAR protocol, Judge Peck indicated that he wrote this opinion, “rather than merely signing the parties’ stipulated TAR protocol, because of the interest within the ediscovery community about TAR cases and protocols.” And, he referenced Da Silva Moore once more, stating “the Court’s approval ‘does not mean. . . that the exact ESI protocol approved here will be appropriate in all [or any] future cases that utilize [TAR]. Nor does this Opinion endorse any vendor . . ., nor any particular [TAR] tool.’”

So, what do you think? How transparent should the technology assisted review process be? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

Brad Jenkins of CloudNine: eDiscovery Trends

February 23, 2015

This is the first of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
What are you working on that you’d like our readers to know about?

Today’s thought leader is Brad Jenkins of CloudNine™. Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation support arena. Brad has authored several articles on document management and litigation support issues, and has appeared as a speaker before national audiences on document management practices and solutions. He’s also my boss! 🙂

What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

LTNY seemed reasonably well attended this year and I think it was a good show. I have noticed a drop in the number of listed exhibitors though, from 225 a couple of years ago to 199 this year. Not sure if that’s a reflection of consolidation in the industry or providers simply choosing to market to prospects in other ways. I guess we’ll see. Nonetheless, I thought there were several good sessions, especially the three judges’ sessions that addressed key cases, the rules changes and general problems with discovery. I liked the fact that those were free and available to all attendees, not just paid ones. Not surprisingly, those sessions were very well attended.

Overall, I thought the primary focus of this show’s curriculum in three areas: information governance (which had its own educational track at the show), cybersecurity and data privacy. With the amazing pace at which Big Data is growing, I expect information governance to be a major topic for some time to come, especially with regard to the use of technology to manage growing data volumes. And, as we discussed in this blog a couple of weeks ago, data breaches continue to be on the rise and we’ve already had a major one involving over 80 million records this year. That’s also going to continue to be a major focus.

One issue at the show that I think affected several attendees was the sudden lack of meeting space. The Hilton got rid of its lobby lounge, replacing it with a smaller executive lounge limited to hotel guests. And, ALM booked up the Bridges Bar for private events throughout the show. Meetings and discussions are a big part of LTNY and I hope ALM will take that into account next year and at least make the Bridges Bar available for meetings.

As for whether ALM should consider moving LTNY to a different time of year, there are pros and cons to that. As a person who missed the show entirely last year due to weather and travel issues and was delayed a few hours this year, it would be nice to minimize the chance of weather delays. On the other hand, I suspect that part of the reason that the show is in the winter is that it’s less costly to host then. Certainly, vendors would need an advanced heads up of at least a year if ALM were to decide to move the show to a different time of year. I don’t expect that to happen, despite the recent travel issues for remote attendees.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I’m not an attorney and am no expert on the rules, but, based on everything that I’ve heard, it sounds as though they should pass. I know that large organizations are counting on Rule 37(e) to reduce their preservation burden. I think whether it will or not will depend on judges’ interpretation of Rule 37(e)(2) (which enables more severe sanctions “only upon finding that the party acted with the intent to deprive another party of the information’s use”). That section may result in lesser sanctions in at least some cases, but we’ll see. At eDiscovery Daily, we’ve covered over 60 cases per year each of the past three years, so at some point in a year or two, it will be interesting to look back at trends and what they show.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I think it’s still a battle. We continue to work with a lot of firms whose attorneys lack basic eDiscovery fundamentals and we continue to provide education through this blog and consulting to attorneys to assist them with technical language in requests for production to ensure that they receive the most useful form of production to them, native files with included metadata. I think it’s imperative for providers like us to continue to do what we can to simplify the discovery process for our clients – through education and through streamlining of processes and process improvement. That’s what our corporate mission is and it continues to be a major focus for CloudNine.

What are you working on that you’d like our readers to know about?

Well, speaking of has “anything been done in the past year to improve the situation”, in November, we released CloudNine’s new easy-to-use Discovery Client application to automate the processing and uploading of raw native data into our CloudNine platform. Many of our clients have struggled with having data dumped on their desk at 4:00 on a Friday afternoon and having to fill out forms, swap emails and play phone tag with vendors to get the data up quickly so that they can review it over the weekend. With CloudNine’s Discovery Client, they can get data processed and loaded themselves without having to contact a vendor, whether it is load ready or not.

The application will extract data from archives such as ZIP and PST files, extract metadata, extract and index text (and OCR documents without text) render native files to HTML and identify duplicates based on MD5HASH value. The application will also generate key data assessment analytics such as domain categorization to enable attorneys to develop an understanding of their data more quickly. And, we are just about to release a new version of the Discovery Client that will enable clients to simply process the data and retrieve the processed data to load into their own preferred platform (if it’s not CloudNine), so we can support you even if you use a different review platform.

Our do-It-yourself features such as loading your own data, adding your own users and fields, accessing audit logs and setting user rights gives our clients unique control of their review process and makes it easier for them to understand eDiscovery and feel in control of the process. Simplifying discovery and taking the worry out of it (as much as possible) is what CloudNine is all about.

Thanks, Brad, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

DESI Wants Your Input! – eDiscovery Trends

January 20, 2015

It’s not Desi Arnaz who wants it, but the Discovery of Electronically Stored Information (DESI) VI workshop, which is being held at the University of San Diego on June 8 as part of the 15th International Conference on Artificial Intelligence & Law (ICAIL 2015).

The DESI VI workshop aims to bring together researchers and practitioners to explore innovation and the development of best practices for application of search, classification, language processing, data management, visualization, and related techniques to institutional and organizational records in eDiscovery, information governance, public records access, and other legal settings. Ideally, the aim of the DESI workshop series has been to foster a continuing dialogue leading to the adoption of further best practice guidelines or standards in using machine learning, most notably in the eDiscovery space. Organizing committee members include Jason R. Baron of Drinker Biddle & Reath LLP and Douglas W. Oard of the University of Maryland.

Previous DESI workshops were held in places like Palo Alto, London, Barcelona, Rome and Pittsburgh (maybe not as exciting as the other locales, but they don’t have six Super Bowl championships 🙂 ).

DESI VI invites “refereed” papers (due by April 10 and limited to 4-10 pages) describing research or practice. After peer review, accepted papers will be posted on the DESI VI website and distributed to workshop participants. Authors of accepted refereed papers will be invited to present their work either as an oral or a poster presentation. They also invite “unrefereed” position papers (due by May 1and typically 2-3 pages) describing individual interests for inclusion (without review) on the DESI VI Web site and distribution to workshop participants. Submissions should be sent by email to Doug Oard (oard@umd.edu) with the subject line DESI VI POSITION PAPER or DESI VI RESEARCH PAPER. All submissions received will be acknowledged within 3 days.

Participation in the DESI VI workshop is open. Submission of papers is encouraged, but not required.

For more information about the workshop, click the Call for Submissions here (or here for the PDF version). The Call for Submissions also includes a References section which includes papers and cases useful as background reading for the focus of the workshop – even if you don’t plan to go, it’s a good list to check out. I’m happy to say that most of the cases on the list have been covered by this blog (including Da Silva Moore, EORHB v. HOA Holdings, Global Aerospace Inc., et al. v. Landow Aviation, L.P. and others.

So, what do you think? Are you going to attend? Submit a paper? Please share any comments you might have or if you’d like to know more about a particular topic.

Three “C”s, Cowboys, Cannibals and Craig (Ball) – eDiscovery Best Practices

January 14, 2015

They say that a joke is only old if you haven’t heard it before. In that vein, an article about eDiscovery is only old if you haven’t read it before. Craig Ball is currently revisiting some topics that he covered ten years ago with an updated look, making them appropriate for 1) people who weren’t working in eDiscovery ten years ago (which is probably a lot of you), 2) people who haven’t read the articles previously and 3) people who have read the articles previously, but haven’t seen his updated takes. In other words, everybody.

So far, Craig has published three revisited articles to his terrific Ball in your court blog. They are:

Starting Over, which sets the stage for the series, and covers The DNA of Data, which was the very first Ball in your court (when it was still in print form). This article discusses how electronic evidence isn’t going away and claims of inaccessible data and how technological advances have rendered claims of inaccessibility mostly moot.

Unclear on the Concept (originally published in Law Technology News in May of 2005), which discusses some of the challenges of early concept searching and related tools (when terms like “predictive coding” and “technology assisted review” hadn’t even entered our lexicon yet). Craig also pokes fun at himself for noting back then how he read Alexander Solzhenitsyn and Joyce Carol Oates in grade school. 🙂

Cowboys and Cannibals (originally published in Law Technology News in June of 2005), which discusses the need for a new email “sheriff” in town (not to be confused with U.S. Magistrate Judge John Facciola in this case) to classify emails for easier retrieval. Back then, we didn’t know just how big the challenge of Information Governance would become. His updated take concludes as follows:

“What optimism exists springs from the hope that we will move from the Wild West to Westworld, that Michael Crichton-conceived utopia where robots are gunslingers. The technology behind predictive coding will one day be baked into our IT apps, and much as it serves to protect us from spam today, it will organize our ESI in the future.”

That day is coming, hopefully sooner rather than later. And, you have to love a blog post that references Westworld, which was a terrific story and movie back in the 70s (wonder why nobody has remade that one yet?).

eDiscovery Daily has revisited topics several times as well, especially some of the topics we covered in the early days of the blog, when we didn’t have near as many followers yet. It’s new if you haven’t read it, right? I look forward to future posts in Craig’s series.

So, what do you think? How long have you been reading articles about eDiscovery? Please share any comments you might have or if you’d like to know more about a particular topic.

Image © Metro Goldwyn Mayer

2014 eDiscovery Case Law Yhttps://cloudnine.com/ediscoverydaily/case-law/2014-ediscovery-case-law-year-in-review-part-3/ear in Review, Part 3

January 8, 2015

As we noted yesterday and the day before, eDiscoveryDaily published 93 posts related to eDiscovery case decisions and activities over the past year, covering 68 unique cases! Yesterday, we looked back at cases related to eDiscovery cost sharing and reimbursement, fee disputes and production format disputes. Today, let’s take a look back at cases related to privilege and inadvertent disclosures, requests for social media, cases involving technology assisted review and the case of the year – the ubiquitous Apple v. Samsung dispute.

We grouped those cases into common subject themes and will review them over the next few posts. Perhaps you missed some of these? Now is your chance to catch up!

PRIVILEGE / INADVERTENT DISCLOSURES

There were a couple of cases related to privilege issues, including one where privilege was upheld when the plaintiff purchased the defendant’s seized computer at auction! Here are two cases where disclosure of privileged documents was addressed:

Privilege Not Waived on Defendant’s Seized Computer that was Purchased by Plaintiff at Auction: In Kyko Global Inc. v. Prithvi Info. Solutions Ltd., Washington Chief District Judge Marsha J. Pechman ruled that the defendants’ did not waive their attorney-client privilege on the computer of one of the defendants purchased by plaintiffs at public auction, denied the defendants’ motion to disqualify the plaintiff’s counsel for purchasing the computer and ordered the plaintiffs to provide defendants with a copy of the hard drive within three days for the defendants to review it for privilege and provide defendants with a privilege log within seven days of the transfer.

Plaintiff Can’t “Pick” and Choose When it Comes to Privilege of Inadvertent Disclosures: In Pick v. City of Remsen, Iowa District Judge Mark W. Bennett upheld the magistrate judge’s order directing the destruction of an inadvertently-produced privileged document, an email from defense counsel to some of the defendants, after affirming the magistrate judge’s analysis of the five-step analysis to determine whether privilege was waived.

SOCIAL MEDIA

Requests for social media data in litigation continue, though there were not as many disputes over it as in years past (at least, not with cases we covered). Here are three cases related to social media data:

Plaintiff Ordered to Produce Facebook Photos and Messages as Discovery in Personal Injury Lawsuit: In Forman v. Henkin, a Motion to Compel was granted in part for a defendant who requested authorization to obtain records of the plaintiff’s private postings to Facebook.

Plaintiff Ordered to Re-Open Social Media Account for Discovery: In Chapman v. Hiland Operating, LLC, while noting that he was “skeptical” that reactivating the plaintiff’s Facebook account would produce any relevant, noncumulative information, North Dakota Magistrate Judge Charles S. Miller ordered the plaintiff to “make a reasonable, good faith attempt” to reactivate her Facebook account.

Order for Financial Records and Facebook Conversations Modified Due to Privacy Rights: In Stallings v. City of Johnston City, Illinois Chief District Judge David R. Herndon modified an earlier order by a magistrate judge in response to the plaintiff’s appeal, claiming that the order violated the privacy rights of the plaintiff, and of minor children with whom the plaintiff had held conversations on Facebook.

TECHNOLOGY ASSISTED REVIEW

Technology assisted review continued to be discussed and debated between parties in 2014, with some disputes involving how technology assisted review would be conducted as opposed to whether it would be conducted at all. Courts continued to endorse technology assisted review and predictive coding, even going so far as to suggest the use of it in one case. Here are six cases involving the use of technology assisted review in 2014:

Court Rules that Unilateral Predictive Coding is Not Progressive: In In Progressive Cas. Ins. Co. v. Delaney, Nevada Magistrate Judge Peggy A. Leen determined that the plaintiff’s unannounced shift from the agreed upon discovery methodology, to a predictive coding methodology for privilege review was not cooperative. Therefore, the plaintiff was ordered to produce documents that met agreed-upon search terms without conducting a privilege review first.

Court Rules in Dispute Between Parties Regarding ESI Protocol, Suggests Predictive Coding: In a dispute over ESI protocols in FDIC v. Bowden, Georgia Magistrate Judge G. R. Smith approved the ESI protocol from the FDIC and suggested the parties consider the use of predictive coding.

Court Sides with Defendant in Dispute over Predictive Coding that Plaintiff Requested: In the case In re Bridgepoint Educ., Inc., Securities Litigation, California Magistrate Judge Jill L. Burkhardt ruled that expanding the scope of discovery by nine months was unduly burdensome, despite the plaintiff’s request for the defendant to use predictive coding to fulfill its discovery obligation and also approved the defendants’ method of using search terms to identify responsive documents for the already reviewed three individual defendants, directing the parties to meet and confer regarding the additional search terms the plaintiffs requested.

Though it was “Switching Horses in Midstream”, Court Approves Plaintiff’s Predictive Coding Plan: In Bridgestone Americas Inc. v. Int’l Bus. Mach. Corp., Tennessee Magistrate Judge Joe B. Brown, acknowledging that he was “allowing Plaintiff to switch horses in midstream”, nonetheless ruled that that the plaintiff could use predictive coding to search documents for discovery, even though keyword search had already been performed.

Court Approves Use of Predictive Coding, Disagrees that it is an “Unproven Technology”: In Dynamo Holdings v. Commissioner of Internal Revenue, Texas Tax Court Judge Ronald Buch ruled that the petitioners “may use predictive coding in responding to respondent’s discovery request” and if “after reviewing the results, respondent believes that the response to the discovery request is incomplete, he may file a motion to compel at that time”.

Court Opts for Defendant’s Plan of Review including TAR and Manual Review over Plaintiff’s TAR Only Approach: In Good v. American Water Works, West Virginia District Judge John T. Copenhaver, Jr. granted the defendants’ motion for a Rule 502(d) order that merely encouraged the incorporation and employment of time-saving computer-assisted privilege review over the plaintiffs’ proposal disallowing linear privilege review altogether.

APPLE V. SAMSUNG

Every now and then, there is a case that just has to be covered. Whether it be for the eDiscovery related issues (e.g., adverse inference sanction, inadvertent disclosures, eDiscovery cost reiumbursement) or the fact that billions of dollars were at stake or the fact that the case earned its own “gate” moniker, the Apple v. Samsung case demanded attention. Here are the six posts (just from 2014, we have more in previous years) about this case:

Quinn Emanuel Sanctioned for Inadvertent Disclosure, Samsung Escapes Sanction: California Magistrate Judge Paul S. Grewal has now handed down an order on motions for sanctions against Samsung and the Quinn Emanuel law firm in the never-ending Apple v. Samsung litigation for the inadvertent disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate”.

Apple Can’t Mention Inadvertent Disclosure in Samsung Case: Back in January, Quinn Emanuel Urquhart & Sullivan LLP was sanctioned for their inadvertent disclosure in the Apple vs Samsung litigation (commonly referred to as “patentgate”). California Magistrate Judge Paul S. Grewal handed down an order on motions for sanctions against Quinn Emanuel (in essence) requiring the firm to “reimburse Apple, Nokia, and their counsel for any and all costs and fees incurred in litigating this motion and the discovery associated with it”. Many felt that Samsung and Quinn Emanuel got off lightly. Now, Apple can’t even mention the inadvertent disclosure in the upcoming Samsung trial.

Apple Wins Another $119.6 Million from Samsung, But It’s Only 6% of What They Requested: Those of you who have been waiting for significant news to report from the Apple v. Samsung litigation, your wait is over! As reported last week in The Recorder, a California Federal jury ordered Samsung on Friday to pay Apple $119.6 million for infringing three of Apple’s iPhone patents. However, the award was a fraction of the nearly $2.2 billion Apple was requesting.

Samsung and Quinn Emanuel Ordered to Pay Over $2 Million for “Patentgate” Disclosure: Remember the “patentgate” disclosure last year (by Samsung and their outside counsel firm of Quinn Emanuel Urquhart & Sullivan LLP) of confidential agreements that Apple had with Nokia? Did you think they were going to avoid having to pay for that disclosure? The answer is no.

Court Refuses to Ban Samsung from Selling Products Found to Have Infringed on Apple Products: Apple may have won several battles with Samsung, including ultimately being awarded over $1 billion in verdicts, as well as a $2 million sanction for the inadvertent disclosure of its outside counsel firm (Quinn Emanuel Urquhart & Sullivan LLP) commonly known as “patentgate”. But, Samsung has may have won the war with the court’s refusal to ban Samsung from selling products that were found to have infringed on Apple products.

Apple Recovers Part, But Not All, of its Requested eDiscovery Costs from Samsung: Apple won several battles with Samsung, including ultimately being awarded over $1 billion in verdicts, as well as a $2 million sanction for the inadvertent disclosure of its outside counsel firm (Quinn Emanuel Urquhart & Sullivan LLP) commonly known as “patentgate”, but ultimately may have lost the war when the court refused to ban Samsung from selling products that were found to have infringed on Apple products. Now, they’re fighting over relative chicken-feed in terms of a few million that Apple sought to recover in eDiscovery costs.

Tomorrow, we will cover cases related to the most common theme of the year (three guesses and the first two don’t count). Stay tuned!

So, what do you think? Did you miss any of these? Please share any comments you might have or if you’d like to know more about a particular topic.

Court Opts for Defendant’s Plan of Review including TAR and Manual Review over Plaintiff’s TAR Only Approach – eDiscovery Case Law

November 24, 2014

In Good v. American Water Works, 2:14-01374 (S.D. W. Vir. Oct. 29, 2014), West Virginia District Judge John T. Copenhaver, Jr. granted the defendants' motion for a Rule 502(d) order that merely encouraged the incorporation and employment of time-saving computer-assisted privilege review over the plaintiffs’ proposal disallowing linear privilege review altogether.

Case Background

In this class action litigation involving the Freedom Industries chemical spill, the parties met and conferred, agreeing on all but one discovery issue: privilege review and 502(d) clawbacks. The defendants proposed that the Rule 502(d) order merely encourage the incorporation and employment of computer-assisted privilege review, while the plaintiffs proposed that the order “limit privilege review to what a computer can accomplish, disallowing linear (aka ‘eyes on’) privilege review altogether”.

The plaintiffs would agree only to a pure quick peek/claw-back arrangement, which would place never-reviewed, never privilege-logged documents in their hands as quickly as physically possible at the expense of any opportunity for care on the part of a producing party to protect a client's privileged and work product protected information. On the other hand, the defendants did not wish to forego completely the option to manually review documents for privilege and work product protection.

The plaintiffs argued that if they were to proceed with a manual privilege review, then only 502(b) protection – the inadvertent waiver rule – should apply, and not 502(d) protection, which offers more expansive protection against privilege waivers.

Judge’s Ruling

Judge Copenhaver noted that “[t]he defendants have chosen a course that would allow them the opportunity to conduct some level of human due diligence prior to disclosing vast amounts of information, some portion of which might be privileged. They also appear to desire a more predictable clawback approach without facing the uncertainty inherent in the Rule 502(b) factoring analysis. Nothing in Rule 502 prohibits that course. And the parties need not agree in order for that approach to be adopted”.

Therefore, despite the fact that the plaintiffs were “willing to agree to an order that provides that the privilege or protection will not be waived and that no other harm will come to the Defendants if Plaintiffs are permitted to see privileged or work product protected documents”, Judge Copenhaver ruled that “[i]nasmuch as defendants' cautious approach is not prohibited by the text of Rule 502, and they appear ready to move expeditiously in producing documents in the case, their desired approach is a reasonable one.” As a result, he entered their proposed Rule 502(d) order, “with the expectation that the defendants will marshal the resources necessary to assure that the delay occasioned by manual review of portions of designated categories will uniformly be minimized so that disclosure of the entirety of even the most sensitive categories is accomplished quickly.”

So, what do you think? Should the defendants have retained the right to manual review or should the plaintiffs’ proposed approach have been adopted? 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.

Want an Automated, Easy and Inexpensive Way to Process Your Data? Read On – eDiscovery Trends

November 10, 2014

A couple of months ago, we had a laugh at Ralph Losey’s post that took a humorous look at the scenario where it’s Friday at 5 and you need data processed to be reviewed over the weekend. It was a funny take on a real problem that most of us have experienced from time to time. But, there may be a solution to this problem that’s automated, easy and inexpensive.

Anytime we talk about something that relates to our company, CloudNine Discovery, we always add the “shameless plug warning” to let people know that the topic relates to our software or a service we offer. If you’re a regular reader of our blog, you know it doesn’t happen that often. But, we have just made a major announcement that we believe will interest many of you.

Today, we are officially announcing the release of OnDemand Discovery®, our new application that enables you to upload your native data and have it processed and loaded directly into OnDemand®, our cloud-based online review tool.

It’s a 100% automated upload process that includes native file extraction from container files (such as Outlook PSTs and ZIP Files), metadata & text extraction and indexing, OCR of image files, duplicate identification and HTML creation, streamlining the process to get started reviewing documents for discovery. The process automatically notifies you when we’ve received your data and then again when we’ve loaded and indexed it and when all processing (including advanced analytics for early data assessment) is complete. So, you never have to wonder about the status of your processing job.

It’s ideal for situations where you receive data late on a Friday afternoon and have to get it ready to review over the weekend and also ideal for preparing small batches of files for review without having to run them through cumbersome processing software built for multiple gigabytes, not a small batch of files. OnDemand Discovery is designed to handle two megabytes, two gigabytes or two hundred gigabytes or more!

There are three easy steps to give it a try:

Sign up for a free account here. You will receive an email with your credentials (including temporary password), to get started.
When you first log in, you’ll see a button to “Upload Data”. That will take you to a form to download the OnDemand Discovery client (which is a Windows based client application that resides on your desktop) for uploading data for processing. Download and install the client to upload data.
Once the client is downloaded and installed, launch the client, log in with your newly created credentials and simply follow the wizard prompts to upload the desired data set and put it into the project of your choice (which you can create if it doesn’t already exist). It’s that easy!

For more information, feel free to check out our press release on our news page here. You can also contact me at daustin@cloudnincloudnine.comm for more information as well.

And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Be Afraid, Be Very Afraid – eDiscovery Horrors!

October 31, 2014

Today is Halloween. Every year at this time, because (after all) we’re an eDiscovery blog, we try to “scare” you with tales of eDiscovery horrors. This is our fifth year of doing so, let’s see how we do this year. Be afraid, be very afraid!

Did you know that overlaying Bates numbers on image-only Adobe PDF files causes the text of the image not to be captured by eDiscovery processing applications?

What about this?

Finding that the information was relevant and that the defendants “acted with a culpable state of mind” when they failed to preserve the data in its original form, New York Magistrate Judge Ronald L. Ellis granted the plaintiff’s motion for spoliation sanctions against the defendant, ordering the defendant to bear the cost of obtaining all the relevant data in question from a third party as well as paying for plaintiff attorney fees in filing the motion.

Or this?

It’s Friday at 5:00 and I need 15 gigabytes of data processed to review this weekend.

How about this?

Ultimately, it became clear that the defendant had not exported or preserved the data from salesforce.com and had re-used the plaintiffs’ accounts, spoliating the only information that could have addressed the defendant’s claim that the terminations were performance related (the defendant claimed did not conduct performance reviews of its sales representatives). As a result, Judge Kemp stated that the “only realistic solution to this problem is to preclude Tellermate from using any evidence which would tend to show that the Browns were terminated for performance-related reasons”…

Or maybe this?

Could an “unconscionable” eDiscovery vendor actually charge nearly $190,000 to process 505 GB and host it for three months? Could another vendor charge over $800,000 to re-process and host data (that it had previously hosted) for approximately two months? Yes, in both cases (though, at least in the second case, the court disallowed over $700,000 of the billed costs).

Scary, huh? If the possibility of additional processing charges for your PDF files, sanctions because you didn’t preserve data in its original format or preserve it in your cloud-based system or inflated eDiscovery vendor charges scares you, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Then again, if it really is Friday at 5:00 and you need 15 gigabytes of data processed to review this weekend (inexpensively, no less), maybe you should check this out.

Of course, if you seriously want to get into the spirit of Halloween, click here. This will really terrify you! (Rest in Peace, Robin)

What do you think? Is there a particular eDiscovery issue that scares you? Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

Battle Continues between Attorneys and Client over Attorneys’ Failure to Review Documents – eDiscovery Case Law

October 17, 2014

In Price Waicukauski & Riley v. Murray, 1:10-cv-1065-WTL-TAB (S.D. Ind. Sept. 18, 2014), Indiana District Judge William T. Lawrence granted the plaintiff’s request for summary judgment for failure to pay attorney’s fees of over $125,000, and refused to issue summary judgment for either party related to a legal malpractice claim for the plaintiff’s admitted failure to review documents produced in the defendants’ case against another party because of a factual dispute regarding the plaintiff’s knowledge of the documents produced.

Case Background

This case was filed in August 2010 by the Plaintiff, Price Waicukauski & Riley, LLC, (“PWR”) against the Defendants, Dennis and Margaret Murray and DPM, Ltd. (“Murrays”), to recover $127,592.91 in attorneys’ fees owed to the plaintiff. The attorneys’ fees stem from the plaintiff’s representation of the defendants in a rather contentious lawsuit against Conseco that spanned more than six years, ultimately settling. In November 2010, unhappy with the plaintiff’s representation, the defendants filed a counterclaim against the plaintiff alleging legal malpractice.

Legal Malpractice Claim of Breach of Duty of Loyalty

The defendants alleged several allegations of legal malpractice against the plaintiff, including conflict of interest, failure to properly plead federal subject matter jurisdiction and failure to take depositions and conduct discovery as they requested, among other allegations. One allegation related to the defendants’ claim that the plaintiff breached the duty of loyalty to the defendants by failing (despite the defendant’s request to do so) to review documents before production in the case that revealed a Trust set up on behalf of the plaintiffs that wasn’t disclosed in interrogatory responses. The plaintiff informed Mr. Murray that it reviewed the documents; however, it ultimately admitted that it did not. As a result of the misleading interrogatory responses, Conseco filed a motion for sanctions which was granted, resulting in the defendants being ordered to pay over $85,000 in attorneys’ fees to their opponent’s lawyers.

The defendants claimed that the plaintiff knew about the Trust from the outset of its representation; however, the plaintiff (“falsely and underhandedly”, according to the defendants) represented to the magistrate judge assigned to the Underlying Litigation that it had no knowledge of the Trust until the defendants’ accountant produced the Murrays’ tax returns.

Judge’s Analysis and Ruling

The plaintiffs referenced Niswander v. Price Waicukauski & Riley, LLC, where the court held that “[w]hether . . . the Plaintiffs’ attorneys had a duty to review the documents personally before producing them in discovery . . . is simply not something within the knowledge of a layperson.” However, Judge Lawrence noted, “[t]he Murrays have no expert testimony on either of these two related claims; however, they claim they fall into the above-mentioned exception for when no expert testimony is needed: ‘when the question is within the common knowledge of the community as a whole or when an attorney’s negligence is so grossly apparent that a layperson would have no difficulty in appraising it.’” Judge Lawrence also agreed with the defendants differentiation of Niswander to this case in that they specifically directed the plaintiff to review the documents while the plaintiffs in Niswander did not.

Judge Lawrence also stated that “[t]he same rings true with the Murrays’ allegation that PWR falsely denied knowledge of the Trust… Again, the Court believes that it is well within the knowledge of a layperson that attorneys should not lie and falsely implicate their own clients in order to shield themselves from liability. Thus, the Court agrees that no expert testimony is needed on this claim regarding the standard of care.”

However, Judge Lawrence decided that “neither party is entitled to summary judgment on this issue” because “there is a factual dispute that precludes granting summary judgment on this claim. PWR maintains that it did not lie; it steadfastly maintains that it had no knowledge of the Trust at the outset of the litigation. Thus, when asked by the magistrate judge when it found out about the Trust, it informed her truthfully. Therefore, whether or not PWR breached a duty that caused injury to the Murrays depends on whom the jury believes: Mr. Murray or PWR.”

Ultimately, Judge Lawrence granted the summary judgment on behalf of the plaintiffs for the attorney’s fees of $127,592.91 (which the defendant did not dispute, but argued that “[t]he successful pursuit of [their] claims would effectively eliminate PWR’s claim”) and denied the defendant’s summary judgment request, but refused a final judgment as outstanding claims remained against the plaintiff. Judge Lawrence concluded his ruling by noting that “The only claims that remain to be tried are the proximate cause issue with regard to the federal subject matter jurisdiction claim and the allegation of malpractice committed by PWR as a result of its alleged failure to review certain documents that led to sanctions being imposed on Mr. Murray.”

So, what do you think? Does the failure by the plaintiff to review the defendant’s production constitute legal malpractice? Please share any comments you might have or if you’d like to know more about a particular topic.

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