Close
Enter your
text here

Preservation

Apple Wins Another $119.6 Million from Samsung, But It’s Only 6% of What They Requested – eDiscovery Case Law

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 (Jury Awards Apple $119.6 Million in Mixed Verdict), 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.

According to the federal jury of four women and four men, nine Samsung mobile devices infringed on Apple’s “quick links” patent and three devices were found to have infringed on Apple’s “slide-to-unlock” patent.  The jury also calculated Samsung’s damages on Apple’s autocorrect patent, but ruled that Samsung products did not infringe on two other Apple patents.

The jury also awarded $158,400 to Samsung for its counterclaims of patent infringement against Apple.

In August of 2012, Apple was awarded over a billion dollar verdict, but U.S. District Judge Lucy Koh later reduced those damages to a measly $599 million and ordered a retrial on 13 of Samsung’s products, saying the earlier jury’s math on those gadgets didn’t add up.  Then, last November, a jury ruled that Samsung owed Apple another $290.5 million for selling mobile devices that infringed five iPhone and iPad patents, bringing the total awarded for infringing on Apple products back up to almost $930 million.  Now, the total awarded is back over a billion.

From the never ending case that brought us an adverse inference sanction and “patentgate”, resulting in another sanction for Samsung’s outside counsel (Quinn Emanuel Urquhart & Sullivan LLP) for their inadvertent disclosure of Apple license information, what can happen next?  Stay tuned.

So, what do you think? Will this case ever end? 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.

Parties’ Failure to Cooperate Sparks Denial of Defendant’s Motion to Reconsider Court Ordered Discovery – eDiscovery Case Law
 

In Cactus Drilling Co. v. Nat’l Union Fire Ins. Co., 2014 U.S. Dist.. 11-14 (W.D. Okla. April 2, 2014), a largely contentious discovery phase was a major contributor to the decision of Oklahoma Chief District Judge Vicki Miles LaGrange regarding the defendant’s Motion to Reconsider, or Alternately, Motion for Clarification of the Court’s Order.

Discovery issues had plagued this litigation since the beginning, as both parties had repeatedly failed to communicate properly with one another, resulting in multiple interventions by the court. Upon the filing of the defendant’s Motion to Reconsider and a fourth request for continuation of the trial, Judge LaGrange held a hearing which discussed some of the discovery issues, among other things. The defendant stated at this hearing that some of the discovery documents requested by the plaintiffs—hard copies belonging to a key player who was no longer employed by the defendant—may have been inadvertently destroyed.

Pursuant to the hearing, Judge LaGrange instructed the parties to file status reports regarding the status of the discovery issues. While both parties accordingly filed a Joint Status Report soon after the hearing, once again there was a failure to communicate between parties, ultimately leading to the defendant’s filing of the Motion to Reconsider, or Alternately, Motion for Clarification of the Court’s Order.

This motion asked to reconsider an earlier court order that would allow discovery on the company’s document retention policies and litigation hold strategies, in order to investigate the circumstances under which the paper documents of the defendant’s former employee been destroyed. The defendant alleged that the court order was issued prematurely, and that it was irrelevant and not discoverable.

In response to the issue of the order being premature, it was found that this was not the case, as the defendant had known about the plaintiff’s request for this discovery at the time the parties filed the Joint Status Report, in which the defendant requested a ruling on whether they were required to produce discovery on their document retention policies along with a relevant witness for deposition.

The relevancy of the plaintiff’s discovery request was also addressed as such: “Plaintiff is entitled to inquire into the circumstances of the destruction of such relevant files while this litigation is pending, whether defendants took proper precautions, and whether such precautions were actually exercised by defendants’ employees. Thus, clearly a discovery request on defendants’ document retention and litigation hold practices and policies and whether such policies were followed with respect to [the former employee’s files] is relevant and discoverable.”

In conclusion, Judge LaGrange denied the defendant’s Motion to Reconsider, and ordered both parties once again to attempt to resolve the issues surrounding discovery and the defendant’s document retention and litigation hold practices in good faith.

So, what do you think? Should a party have the right to request discovery on document retention policies when relevant discovery documents are not obtainable? Should the cooperation—or lack thereof—between parties affect the court’s ruling on various motions? 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.

Use of a Bulk File Changer to Manipulate Metadata Leads to Sanctions for Defendant – eDiscovery Case Law
 

In T&E Investment Group, LLC v. Faulkner, Nos. 11-CV-0724-P, 3:11-CV-1558-P (N.D. Tex. Feb. 12, 2014), Texas District Judge Jorge A. Solis upheld the earlier recommendation of the Magistrate Judge to order an adverse inference sanction, along with monetary sanctions, against the defendant for manipulation of metadata.

In this litigation, it had been ordered that “a third party independent computer forensic expert jointly selected by the parties shall be permitted by defendants to have access to all of the computers used by the defendants during the year 2011, wherever located, for examination of their hard drives.” After examining the three computers produced by the defendants, the expert determined that one of the computers produced by an individual defendant had been manipulated.

In his report, the expert specifically stated that the defendant “created a new profile on PCL-03, copied data to it, and used a bulk file changer to alter the data in an apparent ‘attempt to make it look like that was his computer that he used all the time’.” It was noted that the majority of the manipulated data was not related to the issues of the lawsuit. Further, the expert “believed that someone used the bulk file changer to hide the existence of a computer that had not been produced in this case,” and identified the computer that was not produced as “Alienware.”

Evidence in the expert’s report indicated that the last use of the Alienware computer had been inside the individual defendant’s home, the day after defendants were ordered to produce all computers relevant to the litigation. Additionally, the report found that the missing computer had been connected to the computer identified as PCL-03, which contained the manipulated data. And further, evidence indicated that during the relevant time period, the defendant had sent emails from the Alienware computer.

The defendant testified that he had used the bulk fire changer only to attempt to “set them as read only,” allegedly so they could not be deleted, and further categorized the copied files as “a multitude of things related to our investor files, a lot of photos, PDFs, Word documents, just standard stuff that we update our investor base with.” However, it was ultimately concluded that this testimony was false.

The plaintiffs requested sanctions, and limited consideration to the three specific computers produced by the defendants, while denying the defendants’ objection to consideration of the absent Alienware computer because “a finding that Defendants manipulated data on PCL-03 in order to avoid production of the Alienware computer or any other relevant evidence remains a viable ground for sanctions.”

Broadly, the Magistrate Judge ruled that the defendants had a duty to preserve “the evidence at issue, including PCL-03, the Alienware computer, and any other computer used by Defendants in 2011 in their possession, custody, or control.” Additionally, it was deemed that despite the individual defendant’s insistence that the unproduced computer was not within his home, the “evidence overwhelmingly support[ed]” the determination of the expert with regards to the manipulated data and the existence and use of the Alienware computer.

It was ruled that the individual defendant “acted in bad faith” by altering the metadata on PCL-03 to make it appear that he had used the computer “for a number of years,” and that he had made false statements to the court about manipulating the data, and further that it was done “in the context” of the defendant’s failure to produce the Alienware computer. While the Magistrate Judge concluded that the plaintiffs had not been “irreparably prejudiced,” requisite prejudice was established because “a reasonable fact finder could conclude” that there was relevant information contained on the non-produced computer, and that spoliation had occurred. Therefore, the Magistrate Judge recommended that the jury be “given a spoliation instruction that would entitle the jury to draw an adverse inference that a party who intentionally spoliated evidence did so in order to conceal evidence that was unfavorable to that party.” In addition, a recommendation was made for monetary sanctions of $27,500.

Judge Solis, upon conducting a de novo review and hearing objections from the defendants, accepted the recommendations of the Magistrate Judge in imposing both the adverse inference and monetary sanctions against the defendants. 

So, what do you think? Are adverse sanctions sufficient to suggest electronic evidence that is not present due to data manipulation? Should a more stringent order be placed in cases where it is determined that evidence has been deliberately not produced? 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.

Plaintiff Sanctioned for Spoliation of Digital Evidence in Sexual Harassment Lawsuit – eDiscovery Case Law
 

In Calderon v. Corporacion Puertorrique a de Salud, No. 12-1006 (FAB) (D.P.R. Jan. 16, 2014), the plaintiff was found to have violated his duty to preserve evidence during the discovery phase of this sexual harassment lawsuit. Sanctions were imposed, though not to the extent requested by the defendants.

The discovery dispute began over the Electronically Stored Information (ESI) produced by the plaintiff, which were in the form of messages from his phone exchanged between the plaintiff and a particular identified email address belonging to an unknown person who was alleged to be the harasser. The plaintiff produced relevant messages to the defendants, but also admitted that some of the messages had been deleted from his phone. In response, the defendants filed a motion in limine that sought to have all of the messages excluded, and requesting that the case be dismissed.

While the motion in limine was still pending, the defendants received ESI from the plaintiff’s phone service provider, which contained the plaintiff’s phone and text messages spanning the time period relevant to the case. These records showed that at least 38 messages, including some from the alleged harasser and others that were “the numerous text messages that [plaintiff] sent in response” were not among those messages produced by the plaintiff to the defendants. Therefore, the defendants filed a supplemental motion based on the missing messages that asked to sanction the plaintiff by dismissing the case, since spoliation of evidence had occurred.

The plaintiff filed a motion to quash, with the argument that the defendants had subpoenaed the plaintiff’s service provider before the discovery deadline, and had not given adequate pre-service notice. Therefore, the plaintiff claimed that the subpoena which resulted in the discovery of missing messages should be quashed as procedurally defective. However, it was noted that had the defendants given notice of the subpoena and the plaintiff objected, the subpoena would not have been quashed. Further, the late disclosure of the defendants’ receipt of phone records was determined to be harmless to the plaintiff.

In considering the motions, District Judge Francisco A. Besosa found that spoliation had indeed occurred. This was based on discovery of the 38 messages the plaintiff had deleted, some of which had included photos that were also not produced by the plaintiff. Additionally, the plaintiff’s records revealed that he had “reasonably foresaw litigation and had a duty to preserve relevant evidence,” because the plaintiff had contacted his attorney via his phone prior to the point where he admitted to “forwarding some messages…so that he ‘would be able to print’ them.” Judge Besosa stated that this constituted “conscious abandonment of potentially useful evidence” and indicated that the plaintiff believed the deleted messages would not help his side of the case.

While spoliation had been found to occur, Judge Besosa declined to sanction the plaintiff by dismissing the case, citing that dismissal of an entire lawsuit as a sanction is generally reserved for extreme cases, as cited in Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 5 (1st Cir. 2006), which stated: “[I]t has long been our rule that a case should not be dismissed with prejudice except when a plaintiff’s misconduct is particularly egregious or extreme.” Instead, Judge Besosa ruled that an adverse inference instruction to the jury was the most appropriate sanction for this case.

So, what do you think? Should the court consider quashing evidence that would not have been likely quashed during normal proceedings, if a party obtains such evidence outside of established processes? Are adverse inference instructions truly sufficient to exclude or caution against potential spoliation of evidence? 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.

Sanctions Denied over Destruction of Audio Evidence in Discrimination Lawsuit – eDiscovery Case Law
 

In Sokn v. Fieldcrest Cmty. Unit School Dist. No. 8, No. 10-cv-1122 (C.D. Ill. Jan. 17, 2014), the plaintiff filed a motion for default and sanctions relating to spoliation of evidence with a federal court, after a district court issued a Report and Recommendation (R&R) to deny the motion. Illinois Senior District Judge Joe Billy McDade ultimately declined to impose sanctions, due to a lack of evidence regarding the timing of alleged spoliation, and the plaintiff’s inability to establish bad faith on the part of the defendants.

The plaintiff’s motion argued that the defendants had destroyed audio recordings of closed-session school board meetings that were relevant to the issues of this discrimination case, and that in doing so the defendants had violated Illinois common law, the Illinois Open Meetings Act (OMA), and the defendants’ own documentation retention policies. As such, the plaintiff requested spoliation sanctions.

It was acknowledged that relevant discussions appeared to have taken place at an unknown number of school board meetings “[b]etween May 1, 2007 and January 1, 2009). The policy of the school district states that audio recordings of such meetings are to be maintained for at least 18 months, and only a vote by the school board could cause them to be destroyed. It appears the policy was “designed to fulfill the requirements of the Illinois Open Meetings Act…”

However, the plaintiff argued that an “unknown number of recordings” had been destroyed without a vote, and further that the destruction had occurred at a point when litigation was “either on file [or] reasonably foreseeable, or when a reasonable person would have foreseen that the audio recordings were material to a potential civil suit.” Reasonable anticipation should have occurred on March 24, 2010, at which point the plaintiff had notified the defendants that she believed she had been discriminated against due to her gender. Additionally, the plaintiff stated she believed the relevant audio recordings may have been destroyed less than 18 months after they were created, which would again be in violation of the defendants’ own policies.

Judge McDade’s review of the issues focused first on the alleged violation of the defendants’ retention policies and the OMA, and considered whether these violations were sufficient cause to impose sanctions. With regard to the OMA and the pursuant duty to preserve, it was stated that the “existence of a general duty to preserve is not the proper prerequisite for assessing sanctions in federal court…” and that the general duty imposed by the OMA is to “preserve audio recordings of closed session meetings, not a specific duty to preserve evidence for litigation, and certainly not for this specific litigation.”

Further, Judge McDade reasoned that “bad faith is a prerequisite to imposing sanctions for the destruction of evidence.” Bad faith might have been inferred, had the destruction of the audio recordings occurred before the defendants had reasonable indication of the possibility of litigation. However, the plaintiff was unable to establish the exact time period when the tapes had been destroyed, and therefore “[i]n such a case, the Court will not infer bad faith.”

Without evidence of the timing of the destruction, which was deemed a key factor in the defendants’ “duty to preserve that arises in direct relation to the pendency of potential litigation,” Judge McDade found that sanctions were “not appropriate under these circumstances.” The matter was then referred back to the district court to resume pre-trial proceedings.

So, what do you think? Should the burden to prove timing for the destruction of evidence in order to demonstrate bad faith rest with the plaintiff? Are sanctions warranted in cases where bad faith might be inferred, save for one factor that cannot be demonstrated? 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.

Ruling on ESI Discovery Dispute Delayed as Court Requests Specific Information – eDiscovery Case Law
 

In Worley v. Avanquest North America Inc., No. C 12-04391 WHO (LB), 2013 U.S. Dist. (N.D. Cal. Dec. 13, 2013), a putative class action involving PC security software, California Magistrate Judge Laurel Beeler required the defendant to produce further information related to discovery disputes before a ruling would be issued.

Various discovery disputes arose in this case after the parties failed to agree on a discovery period. The applicable statute of limitations for this lawsuit was five years, and the defendant offered to preserve as evidence Electronically Stored Information (ESI) created during that five-year period. However, the plaintiffs requested an additional ten years added to the discovery period, as this would preserve “all relevant and discoverable information from the time the original versions of the software were developed to the present.”

According to the legal standard set by Rule 26, subsection (b)(1), parties may “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense…” and relevant information “need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Therefore, Judge Beeler sided with the plaintiffs regarding an extended discovery period, stating that relevant information “such as documents relating to the software’s design and purpose, could have pre-dated the statutory period.”

However, the defendant stated that adding ten years to the discovery period would result in an unduly burdensome obligation for preservation, and would be disproportionate to the litigation. This is also addressed in subsection (b)(2)(C) under Rule 26, which states that “the court must limit the frequency or extent of discovery otherwise allowed by these rules…” if it is determined that the discovery would be “unreasonably cumulative or duplicative,” or that “the burden or expense of the proposed discovery outweighs its likely benefit” to the case.

Judge Beeler noted that the argument could not be addressed without further information, specifically that the parties had identified neither potential custodians, nor the amount of information the defendant actually had in its possession, since the defendant’s company acquired the software at issue in 2005. These details would be required in order for the defendant’s technical expert “to specify the burdens associated with preserving relevant information (particularly of electronically-stored information).”

Therefore, the defendant was ordered to identify custodians who would be likely to hold relevant information with regard to the plaintiff’s discovery requests, and further to “consult a person with expertise (such as an IT employee) and specify any undue burden associated with preservation, and produce non-burdensome, relevant information” before a ruling would be given. If the technical expert identified any issues that would make production of documents unduly burdensome, both parties were to “comply with the court’s discovery procedures and submit a joint discovery letter that provides details about the problems and puts their dispute in context.” Meanwhile, Judge Beeler ordered the defendant to produce the agreed documents covered by the five-year statute of limitations, noting that further “discovery can be iterative.”

The final discovery dispute concerned the defendant’s request for the plaintiffs to produce mirror image copies of hard drives belonging to the plaintiffs and their experts, in order to test the software at issue. The plaintiffs argued against this, as the hard drives contained both personal and privileged information, including financial data, family photos, and private communications. They instead proposed allowing the defendant to choose a forensic expert, who would image the hard drives and provide the defendant with specifically requested data, including “recreate[d] computing environments.”

Judge Beeler deemed the proposal “not workable,” and permitted the imaging of the drives with the allowance that the plaintiffs could use a protective order to protect any private information, and would be able to review and remove any privileged information prior to remanding the images to the defendant.

So, what do you think? Should discovery periods be limited to the statute of limitations applicable to a given case? Are protective orders sufficient to protect private information when personal-use computers are involved in litigation? 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.

Apple Can’t Mention Inadvertent Disclosure in Samsung Case – eDiscovery Case Law

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.

According to a story on Law360 (subscription required), U.S. District Court Judge Lucy Koh barred Apple last Wednesday from presenting evidence that Quinn Emanuel leaked confidential information regarding an Apple license agreement, saying that such testimony could prejudice jurors.  “The court believes any evidence [on the leak] could be irrelevant and a waste of time. It would confuse the jury and is outweighed by prejudice,” Judge Koh said. “Apple says it doesn’t intend to bring in any information of that violation unless Samsung opens the door.”

Judge Koh also came close to barring Apple from introducing evidence on the total revenues Samsung earned selling its products that are alleged to infringe on Apple patents. In their damages retrial in November where Apple was awarded $290.5 million (bringing the total awarded for infringing on Apple products to almost $930 million), Samsung’s revenues became a sticking point.  Although Samsung argued last week that Apple shouldn’t be allowed to bring up any of Samsung’s revenues or profits from the accused products, Judge Koh said she wouldn’t go that far. Apple’s damages expert uses many of those numbers in his calculations, and it would be “weird” to limit his testimony on income he considered in those calculations, she said.

For our previous coverage of the case, click here, here, here, here, here and here.

So, what do you think? Is this the case that never ends?  Will there be much more to come?  Do you wish you had some of the fees from this case?  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.

ASU-Arkfeld eDiscovery and Digital Evidence Conference – eDiscovery Trends

Apparently, next week is the week for eDiscovery conferences.

Last week, I told you about a two-day program being hosted next week in my hometown of Houston by The Sedona Conference®.  Then, on Tuesday, I told you about the Second Annual Electronic Discovery Conference for the Small and Medium Case, hosted by the Levin College of Law at the University of Florida and EDRM also next week.  Now, here is another conference alternative for next week – the Third Annual ASU-Arkfeld eDiscovery and Digital Evidence Conference, hosted by Arizona State University and noted eDiscovery expert Michael Arkfeld.

The conference will be held next week, March 12-14 at the Sandra Day O’Connor College of Law / Armstrong Hall at Arizona State University in Tempe, Arizona.  As the downloadable brochure states, the conference will be “[f]ocusing on the practical issues affecting the discovery and admission of electronic information.  Attendees will be participating with thought leaders and practitioners of eDiscovery on issues impacting legal professionals locally, nationally, and globally.”

The conference will include:

  • noted eDiscovery judges, including Shira A. Scheindlin (who will be giving the keynote address on the first morning), John Facciola, and Craig Shaffer;
  • knowledgeable in-house counsel and eDiscovery specialists, including Robert Amicone from Office Depot, Tom Morrissey from Purdue Pharma and Kit Goetz from Qualcomm;
  • distinguished outside counsel, including Robert Singleton from Squire Sanders, Mark Sidoti from Gibbons, Joy Woller from Lewis Roca Rothgerber, Maura Grossman from Wachtell, and Ariana Tadler from Milberg and;
  • dedicated litigation support professionals including Tom O’Connor, Steven Goldstein, and Anne Kershaw.

Topics run the full range of the eDiscovery life cycle – from information management strategies to dispose of “zombie data” (I like that term) to meet and confer, preservation, collection, data analytics and technology assisted review, production formats, eDiscovery for criminal cases and cross-border issues and eDiscovery project management best practices.  You can earn up to 15 hours of CLE credit for attending.

It’s too late for early bird pricing, but regular attendees can still register prior to the show for $595.  Government, non-profit and paralegal registrants can do so for $345; if you’re a student, it only costs $95 to attend.  Those rates are $695/$395/$115, respectively, if you wait until the day the show starts.  Discounted group rates are also available.  You can register for the conference online here.

So, what do you think? Do you plan to attend the program, or perhaps one of the other programs next week? 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.

Alon Israely, Esq., CISSP of BIA – eDiscovery Trends

This is the fifth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Alon Israely.  Alon is the Manager of Strategic Partnerships at Business Intelligence Associates, Inc. (BIA) and currently leads the Strategic Partner Program at BIA.  Alon has over eighteen years of experience in a variety of advanced computing-related technologies and has consulted with law firms and their clients on a variety of technology issues, including expert witness services related to computer forensics, digital evidence management and data security.  Alon is an attorney and a Certified Information Systems Security Professional (CISSP).

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

Once again, I did not see much differentiation between different exhibitors.  There was nothing that stood out to me as being a groundbreaking differentiator.  That said, it seemed a lighter show, less people.  But, even though it was a lighter number of attendees, the caliber of attendees seemed a bit higher.  This is all coming from my gut as I have no real numbers or metrics to back this up, but, the conversations we had at our booth seemed, on average to be a little more substantive than in previous years.

As for trends, there seems to be more discussion about the high-tech trends, such as cloud computing and analytic technologies.  Instead of people talking about these technologies generally, it seemed as though people were talking about these technologies more specifically.  Not to say that they were differentiated, they were still non-differentiated.  But, there were more people talking about cloud technologies and there was a big CLE about it.  And, more people were talking specifically about analytics, not just saying “you can do all of this culling”, but showing specific examples, with charts, graphics and other neat elements that indicate searching/analytics results.  So, there seemed to be a bit more specificity around technology and, together with that, advanced technology.  But, to be honest with you, there was nothing at the show that really blew my mind.  Nothing that was groundbreaking, nothing that looked like it would initiate a shift in the industry.  If anything, it felt like, other than the few specifics around high-tech, similar to previous years.

I will say that some of the attendees that I talked to, some of the GCs and outside counsel firm attorneys, said they spent more time inside the educational components at LegalTech instead of the exhibit hall.  So, as an exhibitor, that doesn’t make me overly happy to see that, but, as a knowledge leader in the industry, I’m very happy to see that.  I know that ALM has always tried to do a good job with the educational components.  And, I think this year attendees took that part of it more seriously than in the past several years.  It seemed that most of the networking that my BIA colleagues and I did was at the educational sessions, not necessarily on the floor.  I think that’s a positive indicator for the people who made it to the show.

As for general trends in 2014, I think you will see corporations start to take control of their technology, not only for in-house solutions, but also for the solutions that outside counsel will be providing to them.  Today, corporations tend to trust their outside counsel firms as to the review tools and other technologies that they use, but I think that it will be much more of a coordinated effort going forward.  The level of maturity for corporations around eDiscovery is being raised.  What the means in practical terms is that they will work more closely with their trusted vendors.  I don’t believe that corporations are going to bring everything in-house and that vendors will be out of luck, though a lot of other people believe that will happen.  I believe that services business for eDiscovery will remain strong for the next decade or longer and the dynamic of obtaining those services will morph into the corporation sitting side-by-side with the law firm making those services decisions.

That trend was evident at the show: you heard it from different vendor booths and the way that they were pitching their products and you heard it from actual in-house attorneys that were attending.  I saw at least two cases where the GC and his outside counsel attorney were walking around the show together – hopefully, the GC wasn’t getting charged for that time!  You’re starting to see corporations take more control of the reins, but not in the way we always thought where they dictate to the outside counsel what vendors to use.  Instead, it’s much more of a collaborative effort and I think you’ll see much more of that over the next several years.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I see those being incredibly important.  The more we can get specificity around what needs to happen early in a case and the more that specificity can be codified, the better off we will all be.  If you look at all of the wasted money spent over the last few years, some of that is solved by the new rules, specifically in the area of preservation.  We’re in the business of selling preservation software, so I’m excited about the potential changes.

But, if I step out of that personal perspective, the changes still make a lot of sense because, today, you still have a lot of effort being spent by parties figuring out legal hold and preservation issues.  Who was put on hold, when were holds put in place, what data was and was not preserved.  That usually happens when a problem occurs – you have a peak of expensive lawyering and legal maneuvering with motions practice, etc and typically when it’s already too late.  So, some of these new rules which are focused on discussions early in the case with respect to preservation should nip a lot of that in the bud.  Now, instead of fighting four months later after discovery closes whether some system was preserved or not, that should get covered early-on with some of the new rules that will hopefully go into effect.  So, I’m very excited about the rules changes, not only as a vendor in the space, but also as a legal professional in general.  The more efficiency that you can create early in the matter, the more money you can save and the more you can focus on the substantive issues and on the merits of the case.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

I do wholeheartedly agree.  Our industry is funny because the cost of goods sold for eDiscovery solutions and services is higher than for most other industries else because of the fact that we have to educate with almost every sale.  There are a lot of resources out there, including efforts by many respected thought leaders and all of the great blogs out there, and many providers have an educational component to their website.  So, you’re right that there are a lot of quality resources for attorneys at their fingertips, yet there are still so many attorneys that simply don’t understand it.  Most of the small business and solo practitioners market doesn’t understand eDiscovery and many GCs of mid-sized corporations don’t either.  And, frankly neither do many “corner office” partners at Amlaw200 firms.  They know about it at a high level and understand that it’s important, but they don’t know enough detail.  But, the good news is that with the advent of those educational resources and the fact that every eDiscovery provider and vendor teaches as they sell, those legal professionals don’t need to learn that much – even getting four or five feet “underneath the water” instead of thirty feet under would be helpful.

As to why they don’t know more, I don’t know.  Maybe attorneys are so used to having experts to rely on and because they feel they know enough about eDiscovery, that they don’t need to know any more detail or process understanding unless a problem arises.  I don’t have an explanation as to why, with all of these great resources available, that most legal professionals don’t have more knowledge.  Unless it’s just that they have a “technology block” and are still afraid of the technology aspects of that knowledge base.  To improve things, I believe that vendors will continue to have to sell in an educational manner, with one half of the sale educating the attorney and the other half focused on closing the deal.  And, hopefully more law schools will continue to incorporate eDiscovery into their curriculum.  But, I don’t see the issue of more knowledge across a wider audience of legal professionals getting a whole lot better anytime soon.

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

BIA continues to be focused on bringing the best technology and workflow that we can to the left side of the EDRM model – such as legal hold, preservation and ECA.  Legal hold activities such as notifying and tracking employees, interviewing custodians and creating questionnaires to do so, and suspending practices such as email auto deletion, and collection of ESI is what we’re all about.  We’ve been really integrating those areas of the left side of the EDRM into one another.  Today, TotalDiscovery employs much more of a circular workflow than it did even a year ago.  It used to be much more siloed – you would implement a legal hold and then do a custodian questionnaire and the collection.  Now, we’ve integrated those steps a lot more.  Hold flows into the questionnaire process, you can seed collections with data from the questionnaires, and so forth.  We’re also continuing to serve up as much intelligence on the data as possible.  You don’t have to wait until you get further down the right side of the model to understand the type of data you have or how much you have.  Obviously, you still need to be able to have a good review tool to perform real hard core research and analysis, but to the extent we can help attorneys more knowledgeable about their data before they get to review, the better it will be for them.  That’s our goal.  So, a lot of that comes from integrating different parts of the process and not focusing on just one area of the process, but gleaning intel from all of them and summarizing at a high level for the attorney.  Also, our enterprise features are really strong and not something we talk about a lot (but we probably should) – stuff like connecting to Active directory, Exchange and other systems – real simple to do as a default configuration.

Also, our flat fee pricing model is a source of pride for us and it’s been very successful.  Flat-fee pricing, unlimited use of functionality and overall budget predictability are values we offer and guarantee – which is unique in the market.  Also, one of the good things about BIA is that we’re a technology company and we’re always adding features – we’ve now moved to a tighter cycle with a new feature or function added every four to six weeks.  Sometimes it’s a small feature, at other times, it’s a large feature we’ve been working on for a while.  It keeps it very fresh and we’re able to do so because of the way we’ve built the product with the cloud and web technologies that we use  So, BIA continues to focus on what we’re good at – improving the workflow and functionality for the tasks compelled by companies on the left side of the EDRM model, leading up to review.

Thanks, Alon, 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 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.

Brad Jenkins of CloudNine Discovery – eDiscovery Trends

This is the first of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Brad Jenkins of CloudNine Discovery.  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 also writes the Litigation Support Industry Blog, which covers news about litigation support and eDiscovery companies’ funding activities, acquisitions & mergers and notable business successes. He 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 significant eDiscovery trends do you see for 2014?

Well, I think that technology assisted review tools will continue to gain traction and the software will continue to make the review process more intuitive.  I think predictive coding software is evolving to provide real-time predicted relevance scores for the collection as each document is reviewed.  One of our partners, Hot Neuron, announced last month that Version 4.0 of their Clustify software, is the first technology-assisted review tool to offer real-time predictive coding.  I also think that the technology associated with predictive coding will be used more in other areas of the eDiscovery life cycle, particularly Information Governance.

Another trend, one that I discussed last year, is integration of “best of breed” cloud-based applications to make the discovery process more seamless. Our alliance with BIA and the integration of their TotalDiscovery legal hold and collection tool to our review application, OnDemand®, has continued to be used by our clients to support preservation through production.  BIA has tremendous expertise and software to support the left side of the EDRM model and it’s a logical fit for the services and software we provide from collection to production.  Personally, I believe that the “best of breed” integrated applications approach is a preferable alternative to a complete solution because it’s difficult to be an expert in all phases of discovery.

I also think that it’s more difficult than ever for the small to medium sized firm to compete with the big firm that has most of the attention from the eDiscovery vendor market and has more resources in house to manage their discovery workload.  Most small to mid-sized firms lack the core competency, the infrastructure, the project management expertise and the overall personnel in house to provide the full range of services that large corporate clients are demanding, especially for litigation support and discovery services.  More than ever, these firms will need to leverage virtual resources to compete and provide the level of services their clients expect.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I don’t really have a prediction as to whether they will be approved this year.  I know there has been controversy with some of the proposed rules changes, especially Rule 37(e), regarding the level of culpability required to justify severe sanctions for spoliation and that Judge Scheindlin and others have criticized the rule.  I wouldn’t be surprised to see some changes to that rule before adoption.  Regardless, it seems like a lot of attorneys don’t follow the rules adopted back in 2006, so the rules will only be effective if attorneys adhere to those rules and courts hold them to those standards.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

Yes, I agree.  We work with a lot of firms whose attorneys lack basic eDiscovery fundamentals.  In some cases, the managing partners know that and have been asking for us to provide seminars and webinars to educate them on eDiscovery best practices.  And, we have been providing more consulting than ever to attorneys to assist them with technical language in requests for production to ensure that they receive the most useful form of production such as native files with included metadata.

As for what can be done, I think it’s imperative for each provider to provide resources to educate their clients and the legal profession as a whole.  We do that with our blog, eDiscoveryDaily.  As we approach 300,000 lifetime hits and 1,000 lifetime posts, both of which we will reach later this year, I’m proud of the knowledge base that this blog has become.  This year, we are also looking to really ramp up CLE training for attorneys that want to become more comfortable with technology.  There are numerous other great blogs and resources out there too.  I think we have to keep pushing and keep finding ways to reach attorneys and give them useful resources that can simplify the discovery process, which is what we’re all about at CloudNine.

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

In addition to our continued integration success with BIA and our partnership with Clustify, we recently released a brand new version of our review application OnDemand® , called Universal OnDemand.  We called it “Universal” because we have re-designed it to work in any browser, so clients can use it whether they prefer Internet Explorer, Firefox, Google Chrome or even Safari on a Mac.  We will be working to expand the application to support use with tablets this year and, as always, working to add features requested by our clients, who are the primary drivers of our development priorities.

We have also been working on a new advanced program that we call the Virtual BIG Firm™ program.  It’s a unique package of the full range of services that we have provided for years, along with our OnDemand review platform, for mid-sized firms that want to compete with the big firms, but don’t have the personnel, infrastructure or expertise to make it happen.  We created our Virtual BIG Firm program based on our experience working with over one hundred law firms for more than eleven years.  Our Virtual BIG Firm program appeals to firms interested in growing their practice.  These firms value continuing legal education, technology advances and they feel comfortable delegating.  It’s not for everybody, so we continue to offer our basic services and software as we always have, but for the firm that has a significant litigation workload but not the resources to fully manage it effectively, it’s a program that provides those resources at a fraction of what big firms spend on personnel & technology.

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 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.