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Preservation

He Sees You When You’re Sleeping — eDiscovery Trends
 

A recent post in the Law Librarians Blog illustrates not only the different ways in which personal data can be captured, but also the continued growth of devices that might contain that data.

In He Sees You When You’re Sleeping, He Knows When You’re Awake…, the authors discuss potential tracking of mouse movements, current data tracking on smart TVs and even the possibility for data to be kept and tracked on…your toothbrush:

  • An October story from Ars Technica discusses how Facebook is working on a way to log cursor movements, beyond tracking where someone clicks on a page to determine an ad’s effectiveness.  According to the Wall Street Journal, Facebook wants to pay attention to the areas a cursor lingers over, even without a click or other interaction.  And, if you’re using a mobile device, Facebook will still be noting when, for instance, “a user’s newsfeed is visible at a given moment on the screen of his or her mobile phone.”
  • Imagine if your toothbrush could keep track of your brushing habits?  According to ZDNet, Salesforce CEO Marc Benioff sees that happening.  “Everything is on the Net. And we will be connected in phenomenal new ways," said Benioff. Benioff highlighted how his toothbrush of the future will be connected. The new Philips toothbrush is Wi-Fi based and have GPS. "When I go into the dentist he won't ask if I brushed. He will say what's your login to your Philips account. There will be a whole new level of transparency with my dentist”.
  • One device that is already capturing your personal data is the smart TV, in some cases whether you want it or not.  A blogger in the U.K. has discovered that his LG smart TV sends details about his viewing habits back to LG servers.  Those habits also include the file names of items viewed from a connected USB stick.  There is a setting in the TV that purports to turn this behavior off (it’s on by default).  It doesn’t work as data is forwarded to LG no matter what the setting.  LG’s response to the disclosure was less than reassuring – “The advice we have been given is that unfortunately as you accepted the Terms and Conditions on your TV, your concerns would be best directed to the retailer,” the representatives wrote in a response to the blogger. “We understand you feel you should have been made aware of these T’s and C’s at the point of sale, and for obvious reasons LG are unable to pass comment on their actions.”

Nice.  Imagine a case where, in addition to hard drives and smart phones, data collectors need to perform collection on flatscreen TVs and toothbrushes?  If it sounds farfetched, remember that, several years ago, cell phones didn’t store data and texts didn’t even exist.

So, what do you think?  What is the most unusual device from which you’ve ever collected data?   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.

Samsung Again Owes Apple Almost $1 Billion, Sanction Deadline Nears – eDiscovery Case Law

The news continues to get worse for Samsung Electronics Co. in its colossal legal battle with Apple Inc…

A California federal jury ruled on November 21 that Samsung owes Apple $290.5 million for selling mobile devices that infringed five iPhone and iPad patents, bringing the total awarded for infringing on Apple products to almost $930 million.

The jury deliberated over the course of three days before reaching its decision and awarding the amount, which was less than the $380 million Apple sought from Samsung, but far more than Samsung’s efforts to cap damages at $53 million.

In August of last year, 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.

And, that may not be the worst of it for Samsung.  Due to the disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate” – Samsung and its outside counsel Quinn Emanuel Urquhart & Sullivan LLP are facing sanctions for that disclosure.

According to a declaration from Nokia’s Chief Intellectual Property Officer, Paul Melin, on June 4, in a meeting between Samsung and Nokia licensing executives, Dr. Seungho Ahn informed Nokia that the terms of the Apple-Nokia license were known to him. Specifically, according to Mr. Melin, Dr. Ahn stated that Apple had produced the Apple-Nokia license in its litigation with Samsung, and that Samsung’s outside counsel had provided his team with the terms of the Apple-Nokia license. Mr. Melin recounts that to prove to Nokia that he knew the confidential terms of the Apple-Nokia license, Dr. Ahn recited the terms of the license, and even went so far as to tell Nokia that “all information leaks.”

Partner John Quinn of Quinn Emanuel acknowledged the inadvertent disclosure, which was apparently due to an associate at the firm failing to obscure a footnote and two paragraphs while performing a digital redaction of a 150-page report which was posted on an FTP site that was accessible by Samsung personnel.

As a result, California Magistrate Judge Paul S. Grewal ordered an “in camera” review of documents that Samsung claimed as privileged which Apple doubted that they were legitimately withheld from its lawyers.  Then, on November 8 after the review was conducted, Judge Grewal ordered Samsung and Quinn Emanuel to show cause why they should not be sanctioned, stating that “it appears…that sanctions against Samsung and its attorneys are warranted”.  However, he gave Samsung one last chance to defend its actions ordering Samsung to file a brief by December 2 (today) to explain why it should not be sanctioned, while also allowing Apple and Nokia to file a brief to propose appropriate sanctions, with a hearing on the matter set for next Monday, December 9.

So, what do you think?  Can it get any worse for Samsung?   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.

Duty to Preserve Triggered When Litigation is "Imminent", Not "Reasonably Foreseeable" – eDiscovery Case Law
 

In the case In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, MDL No. 2385,3:12-md-02385-DRH-SCW (S.D. Ill. Sept. 25, 2013), Chief District Judge David R. Herndon ruled that at least in the Seventh Circuit, the duty to preserve is triggered not when litigation is “reasonably foreseeable” but when “a litigant knew or should have known that litigation was imminent.”

In this multidistrict pharmaceutical litigation, the plaintiffs’ steering committee (PSC) sought the production of documents from a drug company’s former employee. The company claimed it deleted the documents under its records retention policy no later than November 2011, before the first lawsuit was filed in this matter. It claimed its duty to preserve did not arise until it knew that litigation was “imminent” in February 2012, when it received the first demand letter from a plaintiff.

The PSC contended that the company’s duty to preserve arose earlier and filed a motion for sanctions. After the court held a hearing on the motion, the drug company’s counsel worked with the custodian and located 40 personal e-mails from his personal e-mail account sent after he left the company that mentioned Pradaxa, the drug in question. The PSC complained that the company’s production was deficient: it wanted the company to produce more than documents that just “referenced” Pradaxa and also complained that the production was inconsistent with the custodian’s declaration that he did not have any Pradaxa-related documents in his possession. The company then asked an outside vendor to review 200 disaster recovery tapes to determine whether it could recover the custodian’s documents.

The PSC filed a motion to compel the custodial file and asked the court for “other relief that the Court deems appropriate” if it found that the file had been destroyed. It claimed the company’s “duty to preserve arose as soon as [it] had reason to anticipate pending litigation and that imminence is not required.” Here, the PSC argued that the company’s duty was triggered because of other litigation stemming from the Pradaxa clinical trials, adverse event reports, and “internet chatter” on the websites of plaintiffs’ law firms.

Judge Herndon agreed with the company and found its duty to preserve did not arise until February 2012 when it received the demand letter and “knew or should have known that litigation was imminent.” Because there was no duty, sanctions were not appropriate. Moreover, even if the duty had arisen before the file was destroyed, the PSC had not shown the company destroyed the file in bad faith and was thus not entitled to a spoliation inference. Instead, it had followed its records retention policy.

So, what do you think?  Should the request for sanctions have been granted?   Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

The Ubiquitous Apple Samsung Case and “Patentgate” – eDiscovery Case Law

When something gets the “gate” suffix added to it, that’s not a good thing.

It’s hard to believe that a case can get more intense than when a billion dollar verdict is awarded (later reduced to a measly $599 million), but the Apple v. Samsung case seems to only be getting more intense, due to the disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate”.

Here is a summary of events as they are described in California Magistrate Judge Paul S. Grewal’s Order from October 2 regarding Apple’s motion for sanctions (which Nokia joined):

“During the massive fact discovery in this case between August 2011 and March 2012, Apple produced copies of a number of its patent license agreements, including a June 2011 license between Apple and Nokia. Apple marked the Apple-Nokia license as “Highly Confidential —Attorney Eyes’ Only” as permitted by the court’s protective order. Apple also produced and marked as “Highly Confidential —Attorney Eyes’ Only” similar patent license agreements it has reached with Ericsson, Sharp, and Philips.”

“As fact discovery transitioned to expert discovery, on March 24, 2012, Samsung’s outside counsel sent Samsung a draft expert report by Dr. David J. Teece. Dr. Teece’s report concerned damages to be awarded for Apple’s alleged infringement of Samsung’s asserted declared-essential patents. Because it addressed highly confidential, attorneys’ eyes only information, the report should have been fully redacted of that information before it was sent. However, intentionally or inadvertently, it was not. The report as distributed included key terms of each of the four Apple license agreements.”

“Samsung’s outside counsel [Quinn Emanuel Urquhart & Sullivan LLP] posted the report on an FTP site that was accessible by Samsung personnel. An email providing instructions to access the FTP site was addressed to the regular client distribution list used by counsel to provide Samsung personnel updates regarding this case. The information was then sent, over several different occasions, to over fifty Samsung employees, including high-ranking licensing executives. Specifically, on at least four occasions between March 24, 2012 and December 21, 2012, Samsung’s outside counsel emailed a copy of some version of the report to Samsung employees, as well as various counsel representing Samsung in courts and jurisdictions outside the United States.”

“At this point, things get murky. According to a declaration from Nokia’s Chief Intellectual Property Officer, Paul Melin, on June 4, 2013, in a meeting between Samsung and Nokia licensing executives, Dr. Seungho Ahn informed Nokia that the terms of the Apple-Nokia license were known to him. Specifically, according to Mr. Melin, Dr. Ahn stated that Apple had produced the Apple-Nokia license in its litigation with Samsung, and that Samsung’s outside counsel had provided his team with the terms of the Apple-Nokia license. Mr. Melin recounts that to prove to Nokia that he knew the confidential terms of the Apple-Nokia license, Dr. Ahn recited the terms of the license, and even went so far as to tell Nokia that “all information leaks.” Mr. Melin also reports that Dr. Ahn and Samsung then proceeded to use his knowledge of the terms of the Apple-Nokia license to gain an unfair advantage in their negotiations with Nokia, by asserting that the Apple-Nokia terms should dictate terms of a Samsung-Nokia license.”

Over the next few weeks, Samsung appealed the order to District Judge Lucy Koh, who was even more critical, finding the disclosures “improper” and Samsung’s lack of cooperation “inexcusable”.  A couple weeks later, Samsung provided sworn declarations, including one by Dr. Ahn that strongly contradicted Nokia’s representation of the June meeting. At a follow up hearing, Judge Grewal said he was not yet convinced that sanctions were warranted, ordering an “in camera” review of documents that Samsung claimed as privileged which Apple doubted that they were legitimately withheld from its lawyers.

As for Quinn Emanuel, who is also facing potential sanctions, partner John Quinn acknowledged the inadvertent disclosure, which was apparently due to an associate at the firm failing to obscure a footnote and two paragraphs while performing a digital redaction of the 150-page report and announced the creation of a new document retention policy to provide a “second pair of eyes” and avoid similar errors in the future (as reported by IT-Lex)

This past Friday, Judge Grewal ordered Samsung and Quinn Emanuel to show cause why they should not be sanctioned, stating “Having finally crawled out from under the boxes, it appears to the undersigned that if anything was breached, it was this court’s protective order, and that sanctions against Samsung and its attorneys are warranted”.  However, he gave Samsung one last chance to defend its actions ordering Samsung to file a brief by December 2 to explain why it should not be sanctioned, while also allowing Apple and Nokia to file a brief to propose appropriate sanctions, with a hearing on the matter set for December 9.

It will be interesting to see what transpires from here.  There have been at least 31 court filings so far this year in this case, so it looks like they’re just getting warmed up.

So, what do you think?  Are Quinn Emanuel and Samsung in serious trouble?  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.

Are You Scared Yet? – eDiscovery Horrors!

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.  So, I have one question: Are you scared yet?

Did you know that there has been over 3.4 sextillion bytes created in the Digital Universe since the beginning of the year, and data in the world will grow nearly three times as much from 2012 to 2017?  How do you handle your own growing universe of data?

What about this?

The proposed blended hourly rate was $402 for firm associates and $632 for firm partners. However, the firm asked for contract attorney hourly rates as high as $550 with a blended rate of $466.

How about this?

You’ve got an employee suing her ex-employer for discrimination, hostile work environment and being forced to resign. During discovery, it was determined that a key email was deleted due to the employer’s routine auto-delete policy, so the plaintiff filed a motion for sanctions. Sound familiar? Yep. Was her motion granted? Nope.

Or maybe this?

After identifying custodians relevant to the case and collecting files from each, you’ve collected roughly 100 gigabytes (GB) of Microsoft Outlook email PST files and loose electronic files from the custodians. You identify a vendor to process the files to load into a review tool, so that you can perform review and produce the files to opposing counsel. After processing, the vendor sends you a bill – and they’ve charged you to process over 200 GB!!

Scary, huh?  If the possibility of exponential data growth, vendors holding data hostage and billable review rates of $466 per hour keep you awake at night, 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 the expense, difficulty and risk of processing and loading up to 100 GB of data into an eDiscovery review application that you’ve never used before terrifies you, 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!

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!

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.

For Successful Discovery, Think Backwards – eDiscovery Best Practices

The Electronic Discovery Reference Model (EDRM) has become the standard model for the workflow of the process for handling electronically stored information (ESI) in discovery.  But, to succeed in discovery, regardless whether you’re the producing party or the receiving party, it might be helpful to think about the EDRM model backwards.

Why think backwards?

You can’t have a successful outcome without envisioning the successful outcome that you want to achieve.  The end of the discovery process includes the production and presentation stages, so it’s important to determine what you want to get out of those stages.  Let’s look at them.

Presentation

As a receiving party, it’s important to think about what types of evidence you need to support your case when presenting at depositions and at trial – this is the type of information that needs to be included in your production requests at the beginning of the case.

Production

The format of the ESI produced is important to both sides in the case.  For the receiving party, it’s important to get as much useful information included in the production as possible.  This includes metadata and searchable text for the produced documents, typically with an index or load file to facilitate loading into a review application.  The most useful form of production is native format files with all metadata preserved as used in the normal course of business.

For the producing party, it’s important to save costs, so it’s important to agree to a production format that minimizes production costs.  Converting files to an image based format (such as TIFF) adds costs, so producing in native format can be cost effective for the producing party as well.  It’s also important to determine how to handle issues such as privilege logs and redaction of privileged or confidential information.

Addressing production format issues up front will maximize cost savings and enable each party to get what they want out of the production of ESI.

Processing-Review-Analysis

It also pays to determine early in the process about decisions that affect processing, review and analysis.  How should exception files be handled?  What do you do about files that are infected with malware?  These are examples of issues that need to be decided up front to determine how processing will be handled.

As for review, the review tool being used may impact production specs in terms of how files are viewed and production of load files that are compatible with the review tool, among other considerations.  As for analysis, surely you test search terms to determine their effectiveness before you agree on those terms with opposing counsel, right?

Preservation-Collection-Identification

Long before you have to conduct preservation and collection for a case, you need to establish procedures for implementing and monitoring litigation holds, as well as prepare a data map to identify where corporate information is stored for identification, preservation and collection purposes.

As you can see, at the beginning of a case (and even before), it’s important to think backwards within the EDRM model to ensure a successful discovery process.  Decisions made at the beginning of the case affect the success of those latter stages, so don’t forget to think backwards!

So, what do you think?  What do you do at the beginning of a case to ensure success at the end?   Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — Notice anything different about the EDRM graphic?

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.

Leaving Your Hard Drives in a Rental House is Negligent, Court Rules – eDiscovery Best Practices

In Net-Com Services, Inc. v. Eupen Cable USA, Inc., No. CV 11-2553 JGB (SSx) (C.D. Cal. Aug. 5, 2013), the plaintiff’s destruction of evidence was negligent where its principal failed to take steps to preserve evidence he had stored in a home he rented to nonaffiliated lessees.

A principal of the plaintiff, Steve Moffatt, had custody and control over the company’s documents, which included its financial information. The company was using one accounting system but switched to another when it moved into a new location. When the employee looked for this data and could not find it, he assumed it had been “lost or stolen.” However, he did not report the loss to the company’s insurer or to the police.

Over the previous three years that the company was in operation, it was based in Moffatt’s home office. The company went out of business in October 2011, and as the company wound down, Moffatt stored all of the company’s computer hardware and software in his garage. Around that same time, in September or October 2011, Moffatt rented his home. The only precaution he took was to instruct his lessees not to throw any equipment or software away. Despite this instruction, he drove by the home either in September or October and noticed that the renters “had put a ‘big pile of office equipment and everything else in the front yard’” and were throwing them in dumpsters. As associate retrieved the computers’ hard drives from the renters’ trash in September 2011. The hard drives stored the company’s most recent accounting system; another back-up drive stored the same information, but it was most likely thrown out as well.

In 2012, during discovery, the court granted Eupen’s motion to compel “production of ‘missing accounting information,’ including financial data believed to be stored on purportedly ‘dead’ hard drives. Net-Com responded that the data “may no longer exist” and that its principals had had “no luck” accessing the information on the drives. The court ordered Net-Com to produce the missing information, aside from the company’s federal and state tax returns. It also required Net-Com “to produce ‘the computer hard drives containing potentially relevant ESI that Net-Com has been unable to restore’ to allow Eupen USA ‘to test Net-Com’s assertion that the information is inaccessible.’”

In July 2013, Eupen filed a motion for sanctions based on the loss of data and suggested that Net-Com “be precluded from offering evidence of its damages because its production of financial data was incomplete and insufficient due to the loss of information ‘allegedly contained on a computer hard drive that was apparently no longer functional.’” In response, Net-Com argued that no evidence existed that he hard drives had been “‘irreparably damaged’ such that their contents [were] irretrievable.’” The court declined to preclude the evidence but ordered Net-Com to send the hard drives to a vendor for forensic analysis.

Net-Com complied and submitted the drives to a vendor, Ai Networks. The vendor found “‘recoverable data on at least one of the hard drives,’” said it could retrieve it within three weeks, and estimated the cost to recover it would be between $2,000 and $3,000.

The court found that Net-Com’s duty to preserve arose at least by February 8, 2011, when it filed the lawsuit. The complaint alleged that Net-Com’s damages amounted to “millions of dollars”; therefore, the complaint placed the company’s financial and accounting data at issue. But “seven months after filing suit, Moffatt effectively abandoned the hardware and software containing Net-Com’s financial records by leaving the equipment and data in a garage in a house he rented out to third parties. Even if the eventual loss and destruction of evidence was not intentional, it was definitely negligent.”

The court found sanctions appropriate, noting that an adverse inference instruction is “‘adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss.’” Although the court could not yet determine whether Eupen had been prejudiced, it ruled that Net-Com had to “bear the full cost of restoring and producing data on the hard drives” and ordered the company “to restore and produce any relevant data from the subject hard drives within fourteen days of the date of this Order.”

So, what do you think?  Were the sanctions severe enough?   Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Despite Missing and Scrambled Hard Drives, Court Denies Plaintiff’s Request for Sanctions – eDiscovery Case Law

In Anderson v. Sullivan, No. 1:07-cv-00111-SJM (W.D. Pa. 08/16/2013), a Pennsylvania court found “that no sanctions are warranted” despite the disappearance of one hard drive, “scrambling” of another hard drive and failure to produce several e-mails because the evidence was not relevant to the underlying claims and because there was no showing the defendants intentionally destroyed evidence.

In the underlying lawsuit, the plaintiff alleged that she was retaliated against by officials employed by, or associated with, the Millcreek Township School District (“MTSD”) because she made several whistleblower reports against the District and its top administrators, including Dean Maynard (MTSD’s former Superintendent) for violation of her First Amendment rights and the Pennsylvania Whistleblower Act.  In January of 2007, Maynard inadvertently sent an email to an MTSD teacher, instead of to the intended recipient.  The email allegedly revealed previously undisclosed personal relationships that Maynard had with two people he had recommended for employment with the District.  Maynard disclosed this letter to the School Board and an investigation ensued, where several computers were examined, including those of Maynard and the plaintiff.

As part of this examination, MTSD’s IT department removed the original hard drives from the targeted employees’ computers and replaced them with a new hard drive onto which the employee’s active files would be copied so that the laptop would function without interruption; however, the original hard drive from Maynard’s computer was lost.

When the new hard drive that was installed in Maynard’s computer was examined by Anderson’s expert in approximately June 2011, the expert discovered the hard drive was “scrambled” possibly by some type of wiping software.

At summary judgment, the court concluded that the plaintiff’s claims did not qualify as whistleblower reports under the PWA because they did not disclose any non-technical violation of law.  After her claims were dismissed on summary judgment, the plaintiff filed a motion for sanctions due to the disappearance of one hard drive, “scrambling” of a second hard drive, and withholding 44 pages of e-mails from a 10,000-page production to conceal that one of the hard drives was missing.  Although this court entered summary judgment in favor of all defendants, they retained jurisdiction to adjudicate the motion for sanctions.

Because the plaintiff’s claims were dismissed as a matter of law, the court found that sanctions were not warranted on either hard drive because they could not have contained relevant evidence.  The court also determined that there was a lack of evidence suggesting that evidence was intentionally destroyed.  With regard to the 44 pages of e-mails that were not produced, the court found there was nothing in the record to suggest they were intentionally withheld or even were relevant to the plaintiff’s claims.  So, the court denied the motion for sanctions.

So, what do you think?  Should the motion for sanctions have been granted?   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.

A Model for Reducing Private Data – eDiscovery Best Practices

Since the Electronic Discovery Reference Model (EDRM) annual meeting just four short months ago in May, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.  Now, the Data Set project has announced another new deliverable – a new Privacy Risk Reduction Model.

Announced in yesterday’s press release, the new model “is a process for reducing the volume of private, protected and risky data by using a series of steps applied in sequence as part of the information management, identification, preservation and collection phases” of the EDRM.  It “is used prior to producing or exporting data containing risky information such as privileged or proprietary information.”

The model uses a series of six steps applied in sequence with the middle four steps being performed as an iterative process until the amount of private information is reduced to a desirable level.  Here are the steps as described on the EDRM site:

  • Define Risk: Risk is initially identified by an organization by stakeholders who can quantify the specific risks a particular class or type of data may pose. For example, risky data may include personally identifiable information (PII) such as credit card numbers, attorney-client privileged communications or trade secrets.
  • Identify Available Data: Locations and types of risky data should be identified. Possible locations may include email repositories, backups, email and data archives, file shares, individual workstations and laptops, and portable storage devices. The quantity and type should also be specified.
  • Create Filters: Search methods and filters are created to ‘catch’ risky data. They may include keyword, data range, file type, subject line etc.
  • Run Filters: The filters are executed and the results evaluated for accuracy.
  • Verify Output: The data identified or captured by the filters is compared against the anticipated output. If the filters did not catch all the expected risky data, additional filters can be created or existing filters can be refined and the process run again. Additionally, the output from the filters may identify additional risky data or data sources in which case this new data should be subjected the risk reduction process.
  • Quarantine: After an acceptable amount of risky data has been identified through the process, it should be quarantined from the original data sets. This may be done through migration of non-risky data, or through extraction or deletion of the risky data from the original data set.

No EDRM model would be complete without a handy graphic to illustrate the process so, as you can see above, this model includes one that illustrates the steps as well as the risk-time continuum (not to be confused with the space-time continuum, relatively speaking)… 😉

Looks like a sound process, it will be interesting to see it in use.  Hopefully, it will enable the Data Set team to avoid some of the “controversy” experienced during the process of removing private data from the Enron data set.  Kudos to the Data Set team, including project co-leaders Michael Lappin, director of archiving strategy at Nuix, and Eric Robi, president of Elluma Discovery!

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

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

eDiscovery Daily is Three Years Old!

We’ve always been free, now we are three!

It’s hard to believe that it has been three years ago today since we launched the eDiscoveryDaily blog.  We’re past the “terrible twos” and heading towards pre-school.  Before you know it, we’ll be ready to take our driver’s test!

We have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 575%!  Our subscriber base has grown over 50% in the last year alone!  Back in June, we hit over 200,000 visits on the site and now we have over 236,000!

We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful posts about eDiscovery trends, best practices and case law.  That’s what this blog is all about.  And, in each post, we like to ask for you to “please share any comments you might have or if you’d like to know more about a particular topic”, so we encourage you to do so to make this blog even more useful.

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, Ride the Lightning, Litigation Support Guru, Complex Discovery, Bryan College, The Electronic Discovery Reading Room, Litigation Support Today, Alltop, ABA Journal, Litigation Support Blog.com, Litigation Support Technology & News, InfoGovernance Engagement Area, EDD Blog Online, eDiscovery Journal, Learn About E-Discovery, e-Discovery Team ® and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As many of you know by now, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

Rodney Dangerfield might put it this way – “I Tell Ya, Information Governance Gets No Respect”

Is it Time to Ditch the Per Hour Model for Document Review?  Here’s some food for thought.

Is it Possible for a File to be Modified Before it is Created?  Maybe, but here are some mechanisms for avoiding that scenario (here, here, here, here, here and here).  Best of all, they’re free.

Did you know changes to the Federal eDiscovery Rules are coming?  Here’s some more information.

Count Minnesota and Kansas among the states that are also making changes to support eDiscovery.

By the way, since the Electronic Discovery Reference Model (EDRM) annual meeting back in May, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.

When it comes to electronically stored information (ESI), ensuring proper chain of custody tracking is an important part of handling that ESI through the eDiscovery process.

Do you self-collect?  Don’t Forget to Check for Image Only Files!

The Files are Already Electronic, How Hard Can They Be to Load?  A sound process makes it easier.

When you remove a virus from your collection, does it violate your discovery agreement?

Do you think that you’ve read everything there is to read on Technology Assisted Review?  If you missed anything, it’s probably here.

Consider using a “SWOT” analysis or Decision Tree for better eDiscovery planning.

If you’re an eDiscovery professional, here is what you need to know about litigation.

BTW, eDiscovery Daily has had 242 posts related to eDiscovery Case Law since the blog began!  Forty-four of them have been in the last six months.

Our battle cry for next September?  “Four more years!”  🙂

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.