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eDiscovery Milestones: Our 500th Post!

One thing about being a daily blog is that the posts accumulate more quickly.  As a result, I’m happy to announce that today is our 500th post on eDiscoveryDaily!  In less than two years of existence!

When we launched on September 20, 2010, our goal was to be a daily resource for eDiscovery news and analysis and we have done our best to deliver on that goal.  During that time, we have published 144 posts on eDiscovery Case Law and have identified numerous cases related to Spoliation Claims and Sanctions.   We’ve covered every phase of the EDRM life cycle, including:

We’ve discussed key industry trends in Social Media Technology and Cloud Computing.  We’ve published a number of posts on eDiscovery best practices on topics ranging from Project Management to coordinating eDiscovery within Law Firm Departments to Searching and Outsourcing.  And, a lot more.  Every post we have published is still available on the site for your reference.

Comparing our first three months of existence with our most recent three months, we have seen traffic on our site grow an amazing 442%!  Our subscriber base has nearly doubled in the last year alone!

And, we have you to thank for that!  Thanks for making the eDiscoveryDaily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

I also want to extend a special thanks to Jane Gennarelli, who has provided some wonderful best practice post series on a variety of topics, ranging from project management to coordinating review teams to learning how to be a true eDiscovery consultant instead of an order taker.  Her contributions are always well received and appreciated by the readers – and also especially by me, since I get a day off!

We always end each post with a request: “Please share any comments you might have or if you’d like to know more about a particular topic.”  And, we mean it.  We want to cover the topics you want to hear about, so please let us know.

Tomorrow, we’ll be back with a new, original post.  In the meantime, feel free to click on any of the links above and peruse some of our 499 previous posts.  Maybe you missed some?  😉

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

eDiscovery Trends: Charges Against Suspect Dismissed Partially Over Storage of Two Terabytes
 

Law Technology News had an interesting article regarding a DEA criminal case written by Ryan J. Foley (Two Terabytes Too Much Evidence for DEA).  Here’s the scenario.

Fugitive Miami doctor Armando Angulo was indicted in 2007 in a multimillion dollar scheme that involved selling prescription drugs to patients who were never examined or even interviewed by a physician.  He fled to his native Panama in 2004 after the Drug Enforcement Administration began its investigation of him.  While the US does have an extradition treaty with Panama, Panamanian authorities say they do not extradite their own citizens.

The case led to conviction of 26 defendants (including 19 doctors) and recovery of $7 million, but Angulo remains at large.  Information related to the case took up two terabytes of hard drive space – 5 percent of the DEA's worldwide electronic storage (which would mean the DEA only has 40 total terabytes worldwide?).  Other case information also included “several hundred boxes of paper containing 440,000 documents, plus dozens of computers, servers, and other bulky items.”

As a result, noting that “[c]ontinued storage of these materials is difficult and expensive”, Stephanie Rose, the U.S. attorney for northern Iowa, dropped the charges, calling the task "an economic and practical hardship".  U.S. District Judge Linda Reade dismissed the case with prejudice; therefore, it cannot be refiled.  However, Angulo is still wanted for separate Medicaid fraud and narcotics charges in Florida, so he’s not completely “off the hook” with regard to criminal investigations.

Does it seem unbelievable that the DEA is walking away from a case for which storage to support it could be purchased from Best Buy for less than $100?  It’s probably safe to assume that the requirements for storage of criminal evidence must meet certain requirements for security and chain of custody that makes the cost for two terabytes in the DEA server environment considerably more expensive than that.  In the LTN article, University of Iowa computer scientist Douglas Jones notes that it’s possible that the DEA’s server is small and needs replacement, but that doing so while maintaining integrity of the data may be costly and risky.

I have not worked for a government agency supporting prosecution of criminal cases, but I would imagine that records management and preservation requirements are at a completely different level than those of many organizations managing data to support their civil litigation docket.  Criminal cases can go on for years or even decades through appeals, so I would think it’s a unique challenge for these agencies.  So, it surprises me that the DEA only has 40 terabytes of storage worldwide.

So, what do you think?  Do you work for a government agency prosecuting criminal cases?  How does your organization handle records management and preservation?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: Pension Committee Precedent Takes One on the Chin
 

In Chin v. Port Authority of New York and New Jersey, No. 10-1904-cv(L), 2012 U.S. App. (2d Cir. July 10, 2012), the Second Circuit Court of Appeals ruled it was within a district court’s discretion not to impose sanctions against a party for its failure to institute a litigation hold.

In its ruling, the appellate court rejected “the notion that a failure to institute a ‘litigation hold’ [at the onset of litigation] constitutes gross negligence per se” and therefore automatically subjects a violating party to sanctions.

The defendant destroyed files in this employment discrimination case relating to its promotion process after a duty to preserve them had attached, but the Second Circuit declined to follow a bright line rule set forth by U.S. District Court Judge Shira Scheindlin of the Southern District of New York in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, which considered it to be grossly negligent for a party not to institute a litigation hold at the onset of discovery. The appeals court stated, “Rather, we agree that ‘the better approach is to consider [the failure to adopt good preservation practices] as one factor’ in the determination of whether discovery sanctions should issue.”

With regard to the factors a party must establish for an adverse inference instruction, the court noted:

“[A] party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.”

Standing by its own precedent in Residential Funding Corp. v. DeGeorge Financial Corp., the court held that the district court had not abused its discretion:

“[A] finding of gross negligence merely permits, rather than requires, a district court to give an adverse inference instruction…Even if we assume arguendo both that the Port Authority was grossly negligent and that the documents here were ‘relevant,’ we have repeatedly held that a “case-by-case approach to the failure to produce relevant evidence,” at the discretion of the district court, is appropriate. In this case, the district court concluded that an adverse inference instruction was inappropriate in light of the limited role of the destroyed folders in the promotion process and the plaintiffs’ ample evidence regarding their relative qualifications when compared with the officers who were actually promoted.”

So, what do you think?  Should either court have followed the precedent of Pension Committee or was the decision appropriate?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

eDiscovery Case Law: More Sanctions for Fry’s Electronics
 

In E.E.O.C. v Fry’s Electronics, Inc., No. C10-1562RSL, 2012 U.S. Dist. (W.D. Wash. July 3, 2012), Washington District Judge Robert S. Lasnik ordered several sanctions against the defendant in this sexual harassment case (including ordering the defendant to pay $100,000 in monetary sanctions and ordering that certain evidence be considered presumptively admissible at trial), but stopped short of entering a default judgment against the defendant.  This ruling came after having previously ordered sanctions against the defendant less than two months earlier.

Prior Sanctions

On May 10, Judge Lasnik granted in part plaintiffs' motion for sanctions in this case, finding that the defendant had spoliated evidence, including data and computer hard drives. In that ruling, Judge Lasnik believed that the prejudicial effect of the spoliation could be counteracted by “(a) instructing the jury that one of the justifications for firing [one of the plaintiffs] was pretextual and (b) allowing plaintiff considerable leeway in arguing what information might have been gleaned from the computer hard drives had they not been destroyed by defendant”. At the time, Judge Lasnik also indicated “some concern regarding the efficacy and thoroughness of defendant's searches” which led to more information being discovered after he ordered a second search.

Additional Spoliation and Misconduct

During a Rule 30(b)(6) deposition held on May 30, the plaintiffs learned for the first time that the accused individual had previously been accused of sexual harassment in 2001 and that an investigation had been conducted. According to Judge Lasnik, the defendant “intentionally withheld this information and the related documents from discovery by raising unfounded objections and ‘negotiating’ a narrowing of the discovery requests” and found the defendant's conduct to be “unfair, unwarranted, unprincipled, and unacceptable”.

Misconduct by the defendants noted by Judge Lasnik also included the redaction of responsive information, “[e]ven after defendant's objections to certain discovery requests were overruled”, as well as production of hundreds of pages of information with the “fallacious argument” that they were relevant to the claims.

Consideration of Default Judgment Sanction

Judge Lasnik noted that it is “once again left to determine whether to strike defendant's answer and enter default judgment against it”, but noted that dismissal is a “harsh sanction” and the following factors must be considered when determining “whether a dispositive sanction is appropriate under either its inherent powers or Rule 37(b): (1) the public's interest in the expeditious resolution of litigation; (2) the Court's need to manage its docket efficiently and effectively; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy in favor of considering cases on the merits; and (5) the availability of less drastic sanctions.”  While finding that the first three factors supported a dispositive sanction, Judge Lasnik ruled against a dispositive sanction in factor 4, indicating that “[t]he public has an interest in a determination of those issues based on the facts, rather than by judicial fiat”.

Lesser Sanctions Ordered

Instead, Judge Lasnik ordered lesser sanctions, indicating that “Defendant's affirmative defenses related to (i) its efforts to prevent and correct harassment in the workplace, (ii) plaintiffs' failure to utilize protective and corrective opportunities provided by defendant, (iii) its good faith and/or privilege to act as it did in this case are STRICKEN.” He also stated that certain documents and testimony related to “other complaints or reports of sexual harassment” at the company were “presumptively admissible at trial”. He also ordered sanctions of $100,000 “to offset the excess costs caused by defendant’s discovery violations, to punish unacceptable behavior, and as a deterrent to future bad conduct” to be split evenly between the two individual plaintiffs, the EEOC and the Court Clerk.

So, what do you think?  Are you surprised that the defendant didn’t receive a default judgment sanction?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: No Sanctions When You Can’t Prove Evidence Was Destroyed
 

In Omogbehin v. Cino, No. 11-2223, 2012 U.S. App. (3d Cir. June 20, 2012), the plaintiff claimed that the District Court erred in denying his motion for spoliation sanctions and appealed to the US Third Circuit Court of Appeals, but lost as the appellate court upheld the rulings by the district judge and magistrate judge.

In this employment discrimination case, the plaintiff (Stephen Omogbehin) filed a motion for adverse inference jury instructions with the belief that the defendants destroyed or suppressed certain eMails during discovery. Unfortunately for the plaintiff, he not only failed to demonstrate evidence of spoliation, he also could not even prove that the alleged eMails existed. Two of the defendants claimed no such eMails existed, with support from their IT experts, who explained that all eMails from the relevant time frame had been produced.

Four-Prong Test

The appellate court upheld the rulings by the district judge and magistrate judge, who had used the four-prong test to determine whether spoliation occurred, requiring the plaintiff to demonstrate that “[1] the evidence was in the party’s control; [2] the evidence is relevant to the claims or defenses in the case; [3] there has been actual suppression or withholding of evidence; and, [4] the duty to preserve the evidence was reasonably foreseeable to the party.” Only after establishing that spoliation occurred, would a separate analysis be conducted to determine whether sanctions are appropriate. To obtain an adverse inference instruction, a party must show “there has been an actual suppression or withholding of the evidence.”

The Magistrate Judge denied Omogbehin's motion because he had failed to show that the emails were actually sent or received, let alone that that any spoliation occurred, much less that it was done intentionally.  The District Court affirmed the Magistrate Judge, concluding that Omogbehin had not satisfied his burden of establishing facts from which the court could "at least infer that the evidence existed in the first place."

The appellate court noted that the defendants “produced the information and documents that Omogbehin requested; that they did not contain what he had hoped or expected is not sufficient to satisfy his burden. He must provide some proof that what he seeks actually existed, but failed to do so.”

Compare to Zubulake

This is an interesting contrast to the Zubulake case, which was also an employment discrimination case.  In that case, Laura Zubulake preserved and produced her own copies of emails that the defendants failed to produce (at least initially) which led to the court’s decision to order discovery from backup tapes that led to additional productions of relevant emails.  Due to the fact that tapes from some key individuals were missing and that the other tapes had led to discovery of additional relevant emails, the court ultimately concluded that the destruction of those tapes resulted in spoliation of relevant evidence.  Zubulake was able to prove a pattern of spoliation that Omogbehin was unable to prove.

So, what do you think?  Have you ever pursued, or been forced to defendant against, spoliation sanctions?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

eDiscovery Trends: Interview with Laura Zubulake of Zubulake’s e-Discovery, Part 2
 

Last week, we discussed the new book by Laura A. Zubulake, the plaintiff in probably most famous eDiscovery case ever (Zubulake vs. UBS Warburg), entitled Zubulake's e-Discovery: The Untold Story of my Quest for Justice.  I also conducted an interview with Laura last week to get her perspective on the book, including her reasons for writing the book seven years after the case ended and what she expects readers to learn from her story.

The book is the story of the Zubulake case – which resulted in one of the largest jury awards in the US for a single plaintiff in an employment discrimination case – as told by the author, in her words.  As Zubulake notes in the Preface, the book “is written from the plaintiff’s perspective – my perspective. I am a businessperson, not an attorney. The version of events and opinions expressed are portrayed by me from facts and circumstances as I perceived them.”  It’s a “classic David versus Goliath story” describing her multi-year struggle against her former employer – a multi-national financial giant.  The book is available at Amazon and also at CreateSpace.

Our interview with Laura had so much good information in it, we couldn’t fit it all into a single post.  Yesterday was part 1.  Here is the second and final part!

What advice would have for plaintiffs who face a similar situation to the one you faced?

I don’t give advice, and I’ll tell you why.  It’s because every case is different.  And, it’s not just the facts of the case but it’s also the personal lives of the plaintiffs.  So, it’s very difficult for me to do that.  Unless you’re in someone else’s shoes, you really can’t appreciate what they’re going through, so I don’t give advice.

What do you think about the state of eDiscovery today and where do you think that more attention could be paid to the discovery process?

While I don’t work in the industry day-to-day, I read a lot and keep up with the trends and it’s pretty incredible to me how it has changed over the past eight to nine years.  The first opinions in my case were in 2003 and 2004.  Back then, we had so little available with regard to technology and legal guidance.  When I attend a conference like LegalTech, I’m always amazed at the number of vendors and all the technology that’s now offered.  From that standpoint, how it has matured as an industry is a good thing.  However, I do believe that there are still important issues with regard to eDiscovery to be addressed.  When you read surveys and you see how many corporations still have yet to adopt certain aspects of the eDiscovery process, the fact that’s the case raises concern.  Some firms have not implemented litigation holds or document retention policies or an information governance structure to manage their information and you would think by now that a majority of corporations would have adopted something along those lines. 

I guess organizations still think discovery issues and sanctions won’t happen to them.  And, while I recognize the difficulty in a large organization with lots of employees to control everything and everybody, I’m surprised at the number of cases where sanctions occur.  I do read some of the case law and I do “scratch my head” from time to time.  So, I think there are still issues.

Obviously, the hot topic now is predictive coding.  My concern is that people perceive that as the “end all” and the ultimate answer to questions.  I think that processes like predictive coding will certainly help, but I think there’s still something to be said for the “human touch” when it comes to reviewing documents. I think that we’re making progress, but I think there is still more yet to go.

I read in an article that you were considering opening up an eDiscovery consulting practice.  Is that the case and, if so, what will be unique about your practice?

It’s something that I’m considering.  I’ve been working on the book, but I’d like to get back into more of a routine and perhaps focus on education for employees.  When people address eDiscovery issues, they look to implement technology and look to establish retention policies and procedures to implement holds, and that’s all good.  But, at the same time, I think there should be more efforts to educate the employees because they’re the ones who create the electronic documents.  Educate them as to the risks involved and procedures to follow to minimize those risks, such as litigation holds.  I think if you have an educated workforce and they understand that “less is more” when writing electronic documents, that they don’t always have to copy someone or forward something, that they can be more selective in their writing to reduce costs.

I think because of my background and my personal experiences and because I’m not an attorney, I can relate more to the typical worker.  I was on the trading desk and I know the day-to-day stresses of trying to manage email, trying to do the right thing, but also trying to be productive.  I think I can also relate to senior management and advise them that, although they may not recognize the risk, the risk is there.  And, that’s because I’ve been a worker, I’ve been on the trading desk, I’ve been through litigation, I’ve actually reviewed documents and I’ve gone to trial.  So, if you think that not implementing information governance or other eDiscovery policies is a good idea, that’s not the case.  Corporations should see this as an opportunity to manage information and use those management structures for the benefit of their company.

Thanks, Laura, 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.

eDiscovery Trends: Interview with Laura Zubulake of Zubulake’s e-Discovery
 

Last week, we discussed the new book by Laura A. Zubulake, the plaintiff in probably most famous eDiscovery case ever (Zubulake vs. UBS Warburg), entitled Zubulake's e-Discovery: The Untold Story of my Quest for Justice.  I also conducted an interview with Laura last week to get her perspective on the book, including her reasons for writing the book seven years after the case ended and what she expects readers to learn from her story.

The book is the story of the Zubulake case – which resulted in one of the largest jury awards in the US for a single plaintiff in an employment discrimination case – as told by the author, in her words.  As Zubulake notes in the Preface, the book “is written from the plaintiff’s perspective – my perspective. I am a businessperson, not an attorney. The version of events and opinions expressed are portrayed by me from facts and circumstances as I perceived them.”  It’s a “classic David versus Goliath story” describing her multi-year struggle against her former employer – a multi-national financial giant.  The book is available at Amazon and also at CreateSpace.

Our interview with Laura had so much good information in it, we couldn’t fit it all into a single post.  So, today is part 1.  Part 2 will be published in the blog tomorrow!

Why did you decide to write the book at this time, seven years after the case was decided?

Actually, I’ve been working on the book for several years and I think it got to the point where I decided either I publish or I don’t publish.  It’s been a work-in-progress for some time and took me longer than I would have expected or liked, but it finally came together.  I probably started it a couple of years after everything was finalized, so it has taken from that point until now to complete it and get it to the point where it is now that I was happy with the results.

What do you expect that those who are familiar with the Zubulake opinions to get out of the book?

Number one, I think it’s really important to note that it’s from the plaintiff’s perspective.  What I find is that most of what you read about in the industry and hear at eDiscovery and legal conferences discuss topics from a defense standpoint.  Most are either a consultant to a defendant or an attorney representing a defendant and I find that the plaintiff’s voice is rarely heard.  And, I felt that I saw things differently from not only the defendant but also my attorneys from time to time because it was my case, I was taking the risks and I had a lot at stake.  So, I think hearing from the plaintiff not just about going through the motions filed and oral arguments and all that but also about life at home and what it’s like dealing with the day-to-day stresses as a plaintiff in a case that lasts three years.  I wanted people to appreciate the difficulty of it. I’m sure most people would assume it’s difficult, but I’m not sure how much people understand about the isolation and how going through litigation can be a lonely place. I write about that in the book.

Number two, a lot has been written about the Zubulake opinions.  Most of it is accurate, but not all of it.  I thought some of the things that were not accurate should be clarified because they were important.  Like, for instance, the role that the adverse inference instruction apparently played to the jury.  I only learned about its role in the verdict during post trial discussions.  Whenever I mention that observation to people, they find that interesting.  I think there are events throughout the litigation that people might learn that what they read in the press is not necessarily 100% accurate.

Also, I think that eDiscovery is still an issue for a lot of medium sized corporations (and probably large corporations, as well).  I think hearing from someone who went through the process would be valuable to them, especially when you consider that I did so without the aid of legal guidelines because there were very few guidelines at the time as I mentioned and also very little technology available.  I had to do it from a very basic standpoint.  So, when you learn anything, it’s really good to learn it from the foundation, from the basics.  From that, you can apply technology and strategies that have been developed over the years.  So, I’m hoping that everybody who reads it will learn something from my experience.

What do you expect that those who are unfamiliar with, or don’t understand the significance of, the Zubulake opinions to get out of the book?

Well, it’s difficult to write a book. When I wrote my first book several years ago about convertible securities, that was what I did for a living and I knew them very well.  I lived this case, so, clearly, I knew it very well.  The problem you have as a writer is not assuming that the reader knows what you know.  So, I tried to write it as clearly as possible and some who are experts in eDiscovery may not find the book to be technical enough, but that was intentional as my goal was to try to appeal to as broad an audience as possible.  That’s always difficult, but that was my goal.  I hope readers learn about the significance of the opinions, learn about the changes in law, and appreciate the plaintiff's viewpoint.

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.

eDiscovery History: Zubulake’s e-Discovery
 

In the 22 months since this blog began, we have published 133 posts related to eDiscovery case law.  When discussing the various case opinions that involve decisions regarding to eDiscovery, it’s easy to forget that there are real people impacted by these cases and that the story of each case goes beyond just whether they preserved, collected, reviewed and produced electronically stored information (ESI) correctly.  A new book, by the plaintiff in the most famous eDiscovery case ever, provides the “backstory” that goes beyond the precedent-setting opinions of the case, detailing her experiences through the events leading up to the case, as well as over three years of litigation.

Laura A. Zubulake, the plaintiff in the Zubulake vs. UBS Warburg case, has written a new book: Zubulake's e-Discovery: The Untold Story of my Quest for Justice.  It is the story of the Zubulake case – which resulted in one of the largest jury awards in the US for a single plaintiff in an employment discrimination case – as told by the author, in her words.  As Zubulake notes in the Preface, the book “is written from the plaintiff’s perspective – my perspective. I am a businessperson, not an attorney. The version of events and opinions expressed are portrayed by me from facts and circumstances as I perceived them.”  It’s a “classic David versus Goliath story” describing her multi-year struggle against her former employer – a multi-national financial giant.

Zubulake begins the story by developing an understanding of the Wall Street setting of her employer within which she worked for over twenty years and the growing importance of email in communications within that work environment.  It continues through a timeline of the allegations and the evidence that supported those allegations leading up to her filing of a discrimination claim with the Equal Employment Opportunity Commission (EEOC) and her subsequent dismissal from the firm.  This Allegations & Evidence chapter is particularly enlightening to those who may be familiar with the landmark opinions but not the underlying evidence and how that evidence to prove her case came together through the various productions (including the court-ordered productions from backup tapes).  The story continues through the filing of the case and the beginning of the discovery process and proceeds through the events leading up to each of the landmark opinions (with a separate chapter devoted each to Zubulake I, III, IV and V), then subsequently through trial, the jury verdict and the final resolution of the case.

Throughout the book, Zubulake relays her experiences, successes, mistakes, thought processes and feelings during the events and the difficulties and isolation of being an individual plaintiff in a three-year litigation process.  She also weighs in on the significance of each of the opinions, including one ruling by Judge Shira Scheindlin that may not have had as much impact on the outcome as you might think.  For those familiar with the opinions, the book provides the “backstory” that puts the opinions into perspective; for those not familiar with them, it’s a comprehensive account of an individual who fought for her rights against a large corporation and won.  Everybody loves a good “David versus Goliath story”, right?

The book is available at Amazon and also at CreateSpace.  Look for my interview with Laura regarding the book in this blog next week.

So, what do you think?  Are you familiar with the Zubulake opinions?  Have you read the book?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: On the Eve of Trial with Apple, Samsung is Dealt Adverse Inference Sanction
 

In Apple Inc. v. Samsung Elecs. Co., Case No.: C 11-1846 LHK (PSG) (N.D. Cal.), California Magistrate Judge Paul S. Grewal stated last week that jurors can presume “adverse inference” from Samsung’s automatically deletion of emails that Apple requested in pre-trial discovery.

Two of the world’s dominant smartphone makers are locked into lawsuits against each other all over the globe as they fiercely compete in the exploding mobile handset market. Both multinationals have brought their best weapons available to the game, with Apple asserting a number of technical and design patents along with trade dress rights. Samsung is, in return, asserting their “FRAND” (“Fair, Reasonable and Non-Discriminatory) patents against Apple. The debate rages online about whether a rectangular slab of glass should be able to be patented and whether Samsung is abusing their FRAND patents.

As for this case, Samsung’s proprietary “mySingle” email system is at the center of this discussion. In this web-based system, which Samsung has argued is in line with Korean law, every two weeks any emails not manually saved will automatically be deleted.  Unfortunately, failure to turn “off” the auto-delete function resulted in spoliation of evidence as potentially responsive emails were deleted after the duty to preserve began.

Judge Grewal had harsh words in his order, noting the trouble Samsung has faced in the past:

“Samsung’s auto-delete email function is no stranger to the federal courts. Over seven years ago, in Mosaid v. Samsung, the District of New Jersey addressed the “rolling basis” by which Samsung email was deleted or otherwise rendered inaccessible. Mosaid also addressed Samsung’s decision not to flip an “off-switch” even after litigation began. After concluding that Samsung’s practices resulted in the destruction of relevant emails, and that “common sense dictates that [Samsung] was more likely to have been threatened by that evidence,” Mosaid affirmed the imposition of both an adverse inference and monetary sanctions.

Rather than building itself an off-switch—and using it—in future litigation such as this one, Samsung appears to have adopted the alternative approach of “mend it don’t end it.” As explained below, however, Samsung’s mend, especially during the critical seven months after a reasonable party in the same circumstances would have reasonably foreseen this suit, fell short of what it needed to do”.

The trial starts today and while no one yet knows how the jury will rule, Judge Grewal’s instructions to the jury regarding the adverse inference certainly won’t help Samsung’s case:

“Samsung has failed to prevent the destruction of relevant evidence for Apple’s use in this litigation. This is known as the “spoliation of evidence.

I instruct you, as a matter of law, that Samsung failed to preserve evidence after its duty to preserve arose. This failure resulted from its failure to perform its discovery obligations.

You also may presume that Apple has met its burden of proving the following two elements by a preponderance of the evidence: first, that relevant evidence was destroyed after the duty to preserve arose. Evidence is relevant if it would have clarified a fact at issue in the trial and otherwise would naturally have been introduced into evidence; and second, the lost evidence was favorable to Apple.

Whether this finding is important to you in reaching a verdict in this case is for you to decide. You may choose to find it determinative, somewhat determinative, or not at all determinative in reaching your verdict.”

Here are some other cases with adverse inference sanctions previously covered by the blog, including this one, this one, this one and this one. 

So, what do you think?  Will the “adverse inference” order decide 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.

eDiscovery Best Practices: Quality Assurance vs. Quality Control and Why Both Are Important in eDiscovery
 

People tend to use the terms Quality Assurance (QA) and Quality Control (QC) interchangeably and it’s a pet peeve of mine.  It’s like using the word “irregardless” – which isn’t really a word.  The fact is that QA and QC are different mechanisms for ensuring quality in…anything.  Products, processes and projects (as well as things that don’t begin with “pro”) are all examples of items that can benefit from quality ensuring mechanisms and those that are related to electronic discovery can particularly benefit.

First, let’s define terms

Quality Assurance (QA) can be defined as planned and systematic activities and mechanisms implemented so that quality requirements for a product or service will be fulfilled.

Quality Control, (QC) can be defined as one or more processes to review the quality of all factors involved in that product or service.

Now, let’s apply the terms to an example in eDiscovery

CloudNine Discovery’s flagship product is OnDemand®, which is an online eDiscovery review application.  It’s easy to use and the leader in self-service, online eDiscovery review (sorry, I’m the marketing director, I can’t help myself).

OnDemand has a team of developers, who use a variety of Quality Assurance mechanisms to ensure the quality of the application.  They include (but are not limited to):

  • Requirements meetings with stakeholders to ensure that all required functionality for each component is clearly defined;
  • Development team “huddles” to discuss progress and to learn from each other’s good development ideas;
  • Back end database and search engine that establish rules for data and searching that data (so, for example, the valid values for whether or not a document is responsive are “True” and “False” and not “Purple”) and;
  • Code management software to keep versions of development code to ensure the developers don’t overwrite each other’s work.

Quality Control mechanisms for OnDemand include:

  • Test plan creation to identify all functional areas of the application that need to be tested;
  • Rigorous testing of all functionality within each software release by a team of software testers;
  • Issue tracking software to track all problems found in testing that allows for assignment to responsible developers and tracking through to completion to address the issue and re-testing to confirm the issue has been adequately addressed;
  • Beta testing by selected clients interested in using the latest new features and willing to provide feedback as to how well those features work and how well they meet their needs.

These QA and QC mechanisms help ensure that OnDemand works correctly and that it provides the functionality required by our clients.  And, we continue to work to make those mechanisms even more effective.

QA & QC mechanisms aren’t just limited to eDiscovery software.  Take the process of conducting attorney review to determine responsiveness and privilege.  QA mechanisms include instructions and background information provided to reviewers up front to get them up to speed on the review process, periodic “huddles” for additional instructions and discussion amongst reviewers to share best practices, assignment of “batches” so that each document is reviewed by one, and only one, reviewer and validation rules to ensure that entries are recorded correctly.  QC mechanisms include a second review (usually by a review supervisor or senior attorney) to ensure that documents are being categorized correctly and metrics reports to ensure that the review team can meet deadlines while still conducting a thorough review.  QA & QC mechanisms can also be applied to preservation, collection, searching and production (among other eDiscovery activities) and they are critical to enabling discovery obligations to be met.

So, what do you think?  What QA & QC mechanisms do you use in your eDiscovery processes?  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.