Case Law

eDiscovery Trends: It’s 10 PM, Does Apple Know Where You Are?

 

Over 30 years ago, local TV stations across the country ran this ad, asking the question “It’s 10 PM, do you know where you children are?”

Today, they could ask the question of many iPhone and iPad users, “It’s 10 PM, does Apple know where you are?”

According to Bloomberg on Monday, “Apple Inc. (AAPL) was sued for alleged privacy invasion and computer fraud by two customers who claim the company is secretly recording and storing the location and movement of iPhone and iPad users, according to a federal complaint filed…in Tampa, Florida.”

Vikram Ajjampur, an iPhone user in Florida, and William Devito, a New York iPad customer, sued April 22 in federal court in Tampa, Florida, seeking a judge’s order barring the alleged data collection and requesting refunds for their phones.

The lawsuit references a report from two computer programmers who indicated that “those of us who own either an iPhone or iPad may have been subjected to privacy invasion since the introduction of iOS 4.0” (operating system).  The report claims that Apple’s iOS4 operating system is logging latitude-longitude coordinates along with the time a spot is visited, is collecting about a year’s worth of location data, and logs location data to a file called "consolidated.db", which is unencrypted and unprotected.

“We take issue specifically with the notion that Apple is now basically tracking people everywhere they go,” Aaron Mayer, an attorney for the plaintiffs, said. “If you are a federal marshal, you have to have a warrant to do this kind of thing, and Apple is doing it without one.”

In addition to the Florida lawsuit, the Illinois Attorney General has asked to meet with Apple executives to discuss these reports and French, German, Italian and South Korean regulators are also investigating the alleged location collection feature as a result of the programmers’ report.

So far, Apple has not commented – officially.  However, MacRumors reports that Steve Jobs has responded to one emailer who requested “Maybe you could shed some light on this for me before I switch to a Droid. They don't track me.”  To which Jobs allegedly responded, “Oh yes they do. We don't track anyone. The info circulating around is false.  Sent from my iPhone.”

True or False?  We’ll hopefully see.  It seems that every week there is a new type of data that can be relevant to the eDiscovery process, doesn’t it?

So, what do you think?  Have you been involved in a case where GPS location data was relevant?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Conclusion of Case Does Not Preclude Later Sanctions

In Green v. Blitz U.S.A., Inc., (E.D. Tex. Mar. 1, 2011), the defendant in a product liability action that had been settled over a year earlier was sanctioned for “blatant discovery abuses” prior to the settlement. Defendant was ordered to add $250,000 to its settlement with plaintiff, to provide a copy of the court’s order to every plaintiff in every lawsuit against defendant for the past two years or else forfeit an additional $500,000 “purging” sanction, and to include the order in its first responsive pleading in every lawsuit for the next five years in which defendant became involved.

Defendant, a manufacturer of gasoline containers, was named in several product liability lawsuits, including this case in which plaintiff alleged that her husband’s death was caused in part by the lack of a flame arrestor on defendant’s gas cans. The jury in plaintiff’s case returned a verdict for defendant after counsel for defendant argued that “science shows” that flame arrestors did not work. The case was settled after the jury verdict for an undisclosed amount, but two years later, counsel for plaintiff sought sanctions and to have the case reopened after learning in another case against defendant that while the gas can lawsuits were underway, defendant had been instructing its employees to destroy email.

The court described defendant’s failure to implement a litigation hold as gas can cases were filed. A single employee met with other employees to ask them to look for documents, but he did not have any electronic searches made for documents and he did not consult with defendant’s information technology department on how to retrieve electronic documents.

The court held that defendant willfully violated the discovery order in the case by not producing key documents such as a handwritten note indicating a desire to install flame arrestors on gas cans and an email noting that the technology for flame arrestors existed given the common use of flame arrestors in the marine industry. “Any competent electronic discovery effort would have located this email,” according to the court, through a key word search. Defendant’s employee in charge of discovery did not conduct a key word search and, despite acknowledging that he was as computer “illiterate as they get,” did not seek help from defendant’s information technology department, which was routinely sending out instructions to employees to delete email and rotating backup tapes every two weeks while the litigation was underway.

The court declined to reopen the case since it had been closed for a year. However, based on its knowledge of the confidential settlement of the parties, the court ordered defendant to pay plaintiff an additional $250,000 as a civil contempt sanction to match the minimum amount that the settlement would have been if plaintiff had been provided documents withheld by defendant. The court also ordered a “civil purging sanction” of $500,000 which defendant could avoid upon showing proof that a copy of the court’s decision had been provided to every plaintiff in a lawsuit against defendant for the past two years. The court added a requirement that defendant include a copy of the court’s opinion in its first pleading in any lawsuit for the next five years in which defendant became a party.

As Yogi Berra would say, “It ain’t over ‘til it’s over”.

So, what do you think?  Should cases be re-opened after they’re concluded for discovery violations?  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: Jurors and Social Media Don’t Mix

Discovery of social media is continuing to increase as a significant issue for organizations to address, with more and more cases addressing the topic, including this one and this one that have reached various conclusions regarding the discoverability of social media.  However, when it comes to social media, courts agree on one thing: jurors and social media don’t mix.  Courts have consistently rejected attempts by jurors to use social technology to research or to communicate about a case, and have increasingly provided pre-trial and post-closing jury instructions to jurors to dissuade them from engaging in this practice.

A recent example of juror misconduct related to social media is this case, where one of the jurors actually attempted to “Friend” one of the defendants on Facebook.  With so much information at our disposal these days and so many ways to communicate, some jurors can be easily tempted to ignore court instructions and behave badly.

At its December 2009 meeting, the Judicial Conference Committee on Court Administration and Case Management (CACM) endorsed a set of suggested jury instructions for district judges to consider using to help deter jurors from using electronic technologies to research or communicate about cases on which they serve.  These proposed instructions were published in thisMemorandum in late January.  These instructions were designed to prevent jurors from two activities:

  1. Independently researching a case, including through the internet or other electronic means,
  2. Communicating about the case, including by electronic means such as email or social media sites such as Facebook.

Several states, such as California and New York, have crafted and adopted their own instructions to regulate the use of social media and other electronic means to research a case.  It seems like a “no-brainer” that every state will eventually be forced to promote or adopt such instructions.  Of course, it also seems like a “no-brainer” for jurors to refrain from such activities anyway, but I guess this is the world we live in today, right?

So, what do you think?  Does your state have standard jury instructions prohibiting social media use?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Destroy Data, Pay $1 Million, Lose Case

A federal judge in Chicago has levied sanctions against Rosenthal Collins Group LLC and granted a default judgment to the defendant for misconduct in a patent infringement case, also ordering the Chicago-based futures broker’s counsel to pay “the costs and attorneys fees incurred in litigating this motion” where plaintiff’s agent modified metadata related to relevant source code and wiped several relevant disks and devices prior to their production and where the court found counsel participated in “presenting misleading, false information, materially altered evidence and willful non-compliance with the Court’s orders.”

In Rosenthal Collins Group, LLC v. Trading Techs. Int’l, No. 05 C 4088, 2011 WL 722467 (N.D. Ill. Feb. 23, 2011), U.S. District Judge Sharon Johnson Coleman assessed a sanction of $1 million to Rosenthal Collins (RCG) and granted defendant/counter-plaintiff Trading Technologies’ (TT) motion for evidentiary sanctions and default judgment.  Much of the reason was due to the actions of RCG’s agent, Walter Buist.  Here’s why:

  • During Buist’s deposition, he admitted to “turning back the clock” to change the “last modified” date on the previously modified source code to make it appear that the modifications had occurred much earlier.  Despite clear evidence of these facts, RCG continued to deny them, even calling the claims “libelous,” “audacious,” and “Oliver Stone-esque.”
  • Buist also later admitted “wiping” six of seven zip disks that originally contained the relevant source code.  While he did not admit wiping the seventh disk, it was also wiped, and the Court found that it was “impossible to believe that it is merely coincidence that the seventh disk happened to be wiped on May 2, 2006, which just happened to be the same day that TT was scheduled to inspect it.”
  • The Court found that here was evidence that “virtually every piece of media ordered produced by the Court in May 2007 and July 2008 was wiped, altered, or destroyed.”
  • Despite RCG’s (and its counsel’s) attempts to distance itself from “its own agent, employed for the purposes of pursuing this litigation” and disavowing any “actual knowledge” of wrongdoing, Buist was RCG’s agent and, therefore, RCG was bound by Buist’s behavior and actions.
  • Even if RCG and its counsel had no knowledge of the destruction of the evidence, the destruction might have been avoided if RCG had complied with the Court’s orders in a timely manner to produce the materials and/or preserved the evidence by taking custody of it.

So, what do you think?  Should parties and their counsel be liable for the actions of an agent on their behalf?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Read Inadvertent Email, Get Disqualified from Case

Lesson of the day: When you receive an inadvertently sent privileged email, read it and don’t disclose receipt of it, you can get kicked off the case.

In Terraphase Engineering, Inc., et al. v. Arcadis, U.S., Inc, the court disqualified defendant’s in-house and outside counsel for their handling of a disputed privileged email that was inadvertently sent by the plaintiffs’ counsel to the defendant and shared with defendant’s outside counsel.  For more information regarding this case, check out this Law Technology News article.

When a group of employees left Arcadis to form a competing company, relations between the two soured quickly and led to litigation.  Just prior to filing their lawsuit, the plaintiffs’ attorney sent a strategy email to his clients, which contained an attachment that, according to the former employees, included “Plaintiffs’ privileged recitation of background and comments to and from legal counsel.” Unfortunately for the attorney (or maybe fortunately, as it turned out), the email system’s auto-complete function (which completes a saved email address as soon as you begin entering it) entered an old Arcadis email address for one of the employees, which wasn’t caught before sending. The email and the attachment went directly to Arcadis, which had been monitoring the plaintiffs’ email accounts since they resigned from the company.

Arcadis’ in-house counsel read the email and the attached document and apparently shared the email with their general counsel and Arcadis’ outside counsel (Gordon & Rees, LLP), neither of whom notified the plaintiffs’ attorney that they had received the email.  Arcadis’ counterclaim contained certain information that caused the plaintiffs to suspect that Arcadis and its counsel had reviewed their privileged communications, and Arcadis, when confronted, acknowledged that it had received the email and agreed to destroy all copies, but refused to identify who reviewed the e-mail.  Eventually, the plaintiffs filed a motion for a protective order to disqualify Arcadis’ counsel and prevent Arcadis from using the email or the attachment during the case, stipulating that attorneys are prohibited from using privileged material that they receive from an opposing party, and are under an ethical obligation to immediately notify the opposing party when such information is received.

Arcadis opposed the motion, arguing that in-house and outside counsel only conducted a cursory review of the email and attachment, and stated that it was not privileged because it was sent “unsolicited” to the plaintiff’s work e-mail, in which he had no reasonable expectation of privacy. Arcadis also argued because the information itself was not privileged and would be disclosed during discovery, the plaintiffs would suffer no irreparable harm. And, since there was no active litigation between the parties when Arcadis received the email, they argued that the rules of professional conduct did not apply.

The court rejected Arcadis’ arguments and ruled for the plaintiffs, disqualifying Arcadis’ outside counsel and the in-house counsel who reviewed the emails, also ruling that Arcadis’ general counsel must be “removed from all aspects of the day-to-day management of the case, including . . . making any substantive or strategic decisions with regard to the case.”.  Arcadis was also ordered to dismiss its counterclaim and the plaintiffs were awarded their costs and fees in connection with bringing the motion against Arcadis.

A copy of the order can be found here.

So, what do you think?  Have you ever been burned by an inadvertently sent email?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Deliberately Produce Wrong Cell Phone, Get Sanctioned

 

In Moreno v. Ostly, No. A127780, (Cal. Ct. App. Feb. 22, 2011), the California Court of Appeals affirmed the trial court’s award of monetary sanctions imposed against the plaintiff and her law firm in the amount of $13,500 for counsel and plaintiff’s discovery misconduct related to the preservation of text messages.

The plaintiff sued her former law firm employer alleging sexual harassment, retaliation and failure to pay back wages.  She claimed that a partner at the firm “forced himself on her sexually” on a daily basis and that she was fired when she notified the partner that she wished to sever the “intimate aspect of their relationship.”  In discovery, defendants sought copies of relevant e-mails and text messages between the plaintiff and the partner.  After the parties' meet and confer efforts failed, the court ordered the plaintiff to produce her personal computer and cell phone for inspection.  The inspection revealed that the cell phone produced was different from the one plaintiff had during her course of employment.  When questioned regarding the discrepancy, plaintiff’s counsel responded that the defendants would have to undertake further discovery efforts to determine what happened to the relevant equipment.  The plaintiff’s attorney conceded that many of the text messages on the prior phone had been used against the defendants before the EEOC, but had not been preserved prior to the disposal of the cell phone.

The defendants filed a motion for terminating and monetary sanctions or, in the alternative, a willful suppression of evidence jury instruction.  The trial court awarded monetary sanctions, finding the plaintiff and her counsel deliberately withheld the fact that the plaintiff failed to preserve her cell phone data, causing opposing counsel and the court to expend unnecessary resources.  The court found plaintiff’s counsel’s conduct willful and his explanation citing a conflict between the duty of loyalty to the client and the duty of candor to opposing counsel and the court “not very credible.”

The court of appeals concluded the trial court's award of monetary sanctions was supported by substantial evidence, and was well within the discretion of the court.

So, what do you think?  Are you aware of any other blatant examples of evasive discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: eDiscovery Case Law Update, by Littler Mendelson P.C.

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: Spoliate Evidence, Don’t Go to Jail, but Pay a Million Dollars

 

As previously referenced in eDiscovery Daily, defendant Mark Pappas, President of Creative Pipe, Inc., was ordered by Magistrate Judge Paul W. Grimm to  “be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney's fees and costs that will be awarded to Plaintiff as the prevailing party pursuant to Fed. R. Civ. P. 37(b)(2)(C).”.  Judge Grimm found that “Defendants…deleted, destroyed, and otherwise failed to preserve evidence; and repeatedly misrepresented the completeness of their discovery production to opposing counsel and the Court.”

However, ruling on the defendants’ appeal, District Court Judge Marvin J. Garbis declined to adopt the order regarding incarceration, stating: “[T]he court does not find it appropriate to Order Defendant Pappas incarcerated for future possible failure to comply with his obligation to make payment of an amount to be determined in the course of further proceedings.”

So, how much is he ordered to pay?  Now we know.

On January 24, 2011, Judge Grimm entered an order awarding a total of $1,049,850.04 in “attorney’s fees and costs associated with all discovery that would not have been un[der]taken but for Defendants' spoliation, as well as the briefings and hearings regarding Plaintiff’s Motion for Sanctions.”  Judge Grimm explained, “the willful loss or destruction of relevant evidence taints the entire discovery and motions practice.” So, the court found that “Defendants’ first spoliation efforts corresponded with the beginning of litigation” and that “Defendants’ misconduct affected the entire discovery process since the commencement of this case.”

As a result, the court awarded $901,553.00 in attorney’s fees and $148,297.04 in costs.  Those costs included $95,969.04 for the Plaintiff’s computer forensic consultant that was “initially hired . . . to address the early evidence of spoliation by Defendants and to prevent further destruction of data”.  The Plaintiff’s forensic consultant also provided processing services and participated in the preparation of plaintiff’s search and collection protocol, which the court found “pertained to Defendants’ spoliation efforts.”

So, what do you think?  Will the defendant pay?  Or will he be subject to possible jail time yet again?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: No Sanctions for Scrubbing Computers Assumed to be Imaged

 

When scrubbing data from a computer drive related to litigation, it’s a good idea to make absolutely sure that there is another copy of that data, via backup or forensic image.  Don’t just take someone’s word for it.

In Federal Trade Commission v. First Universal Lending, LLC, No. 09-82322-CIV, (S.D. Fla. Feb. 17, 2011), the FTC investigated the defendants for their mortgage modification practices by alleging that defendants had violated the Federal Trade Commission Act and that defendants had acted in violation of the Telemarketing Sales Rule. For the duration of the investigation, the court appointed a temporary receiver who took control of defendants’ business premises.

During the discovery stage, the FTC wanted to preserve relevant data that was on defendants’ computers and servers by imaging them. When defendants’ were ask about the locations of all relevant computers and servers, they failed to reveal the location of servers with relevant data. As a result, these servers were not imaged and thus the data was not preserved. Due to misleading testimony by defendants, the receiver believed that all computers and servers had been imaged. Because of the incorrect belief that all of the relevant data had been preserved, the receiver permitted defendants to scrub the computers and sell them. It turned out that some of these were the ones that had not been imaged.

Defendants filed a motion to enjoin the prosecution and/or moved for dismissal of the case due to plaintiff’s spoliation of evidence. Defendants asserted that the FTC had either destroyed or caused to be destroyed computer evidence that would prove all of the defendants’ defenses.

The court found no basis for imposing sanctions against the FTC for the destruction of defendants’ computer system and denied defendants’ motion. The court established that it can impose an adverse inference against a party where the court finds that the party has engaged in spoliation of evidence. For this inference to be applicable there has to be a finding of bad faith. A court can make this finding through direct evidence or circumstantial evidence. If bad faith is based on circumstantial evidence, the following prerequisites must be present: (1) evidence once existed that could fairly be supposed to have been material to the proof or defense of a claim at issue in the case; (2) the spoliating party engaged in an affirmative act causing the evidence to be lost; (3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and (4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator.

The court found that there was no direct evidence of bad faith. Further it pointed out that defendants failed to establish bad faith by circumstantial evidence, since the FTC had not destroyed the computer systems, but rather, the defendants did. The court went on to state, that even assuming, arguendo, that defendants destroyed the hard drives due to the receiver’s agent’s instruction, it did not change the fact that neither the receiver, nor the agent is the FTC.

Furthermore, the court went on that to the extent that defendants’ position could be construed to seek to attribute blame to the FTC for the receiver’s instruction to scrub the computers based on the FTCs misstatement, there was no malicious motive on the FTC’s investigator evident. This was at most negligent, and negligence is not sufficient for an adverse inference instruction as a sanction for spoliation.

Further, the defendants did not demonstrate that the absence of the missing data was fatal to their defense because it was established that alternative sources of information existed.

At last, the court emphasized that the FTC was under no obligation to preserve defendants’ evidence, especially considering the fact that the FTC never had control or dominion over the computers – the receiver did.

So, what do you think?  What are your procedures for ensuring data backup before destruction?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: eLessons Learned Blog.

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: Tom O’Connor of Gulf Coast Legal Technology Center

 

This is the eighth of the LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and asked each of them the same three questions:

  1. What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?
  2. Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom O’Connor.  Tom is a nationally known consultant, speaker and writer in the area of computerized litigation support systems.  A frequent lecturer on the subject of legal technology, Tom has been on the faculty of numerous national CLE providers and has taught college level courses on legal technology.  Tom's involvement with large cases led him to become familiar with dozens of various software applications for litigation support and he has both designed databases and trained legal staffs in their use on many of the cases mentioned above. This work has involved both public and private law firms of all sizes across the nation.  Tom is the Director of the Gulf Coast Legal Technology Center in New Orleans.

What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?

I think that there is still a lack of general baseline understanding of, not just eDiscovery principles, but technology principles.  Attorneys have been coming to LegalTech for over 30 years and have seen people like Michael Arkfeld, Browning Marean and folks like Neil Aresty, who got me started in the business.  The nouns have changed, from DOS to Windows, from paper to images, and now its eDiscovery.  The attorneys just haven’t been paying attention.  Bottom line is: for years and years, they didn’t care about technology.  They didn’t learn it in law school because a) they had no inclination to learn technology and b) they didn’t have any real ability to learn it, myself included.  With the exception of a few people like Craig Ball and George Socha, who are versed in the technical side of things – the average attorney is not versed at all.  So, the technology side of the litigation world consisted of the lit support people, the senior paralegals, the support staff and the IT people (to the minimal extent they assisted in litigation).  That all changed when the Federal Civil Rules changed, and it became a requirement.

So, if I pick up a piece of paper here and ten years ago used this as an exhibit, would the judge say “Hey, counsel, that’s quite a printout you have there, is that a Sans Serif font?  Is that 14 point or 15 point?  Did you print this on an IBM 3436?”  Of course not.  The judge would authenticate it and admit it – or not – and there might be an argument.  Now, when we go to introduce evidence, there are all sorts of questions that are technical in nature – “Where did you get that PST file?  How did that email get generated?  Did you run HASH values on that?”, etc.  And, I’m not just making this up.  If you look at decisions by Judge Grimm or Facciola or Peck or Waxse, they’re asking these questions.  Attorneys, of course, have been caught like the “deer in the headlights” in response to those questions and now they’re trying to pick up that knowledge.  If there’s one real trend I’m seeing this year, it’s that attorneys are finally taking technology seriously and trying to play catch up with their staff on understanding what all of this stuff is about.  Judges are irritated about it.  We have had major sanctions because of it.  And, if they had been paying attention for the last ten years, we wouldn’t be in the mess that we are now.

Of course, some people disagree and think that the sheer volume of data that we have is contributing to that and folks like Ralph Losey, who I respect, think we should tweak the rules to change what’s relevant.  It shouldn’t be anything that reasonably could lead to something of value in the case, we should “ratchet it down” so that the volume is reduced.  My feeling on that is that we’ve got the technology tools to reduce the volume – if they’re used properly.  The tools are better now than they were three years ago, but we had the tools to do that for awhile.  There’s no reason for these whole scale “data dumps” that we see, and I forget if it was either Judge Grimm or Facciola who had a case where in his opinion he said “we’ve got to stop with these boilerplate requests for discovery and responses for requests for discovery and make them specific”.

So, that’s the trend I see, that lawyers are finally trying to take some time to try to get up to speed – whining and screaming pitifully all the way about how it’s not fair, and the sanctions are too high and there’s too much data.  Get a life, get a grip.  Use the tools that are out there that have been given to you for years.  So, if I sound cynical, it’s because I am.

Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?

{Interviewed on the final afternoon of LTNY}  Well, as always, a good show.  This year, I think it was a great show, which is actually a bit of a surprise to me.  I was worried, not that it would go down from last year, but that we had maybe flattened out because of the economy (and the weather).  But, the turnout was great, the exhibit halls were great, a lot of good information.  I think we’re seeing a couple of trends from vendors in general, especially in the eDiscovery space.  We’re seeing vendors trying to consolidate.  I think attorneys who work in this space are concerned with moving large amounts of data from one stage of the EDRM model to another.  That’s problematic, because of the time and energy involved, the possible hazards involved and even authentication issues involved.  So, the response to that is that some vendors attempt to do “end-to-end” or at least do three out of the six stages and reduce the movement or partner with each other with open APIs and transparent calls, so that process is easier.

At the same time, we’re seeing the process faster and more efficient with increased speed times for ingestion and processing, which is great.  Maybe a bigger trend and one that will play out as the year goes along is a change in the pricing model, clearly getting away from per GB pricing to some other alternative such as, maybe, per case or per matter.  Because of the huge amount of data we have do so.  But also, we’re leaving out an area that Craig Ball addressed last year with his EDna challenge – what about the low end of the spectrum?  This is great if you’re Pillsbury or DLA Piper or Fulbright & Jaworski – they can afford Clearwell or Catalyst or Relativity and can afford to call in KPMG or Deloitte.  But, what about the smaller cases?  They can benefit from technology as well.  Craig addressed it with his EDna challenge for the $1,000 case and asked people to respond within those parameters.  Browning Marean and I were asking “what about the $500,000 case?”  Not that there’s anything bad about low end technology, you can use Adobe and S1 and some simple databases to do a great job.  But, what about in the middle, where I still can’t afford to buy Relativity and I still can’t afford to process with Clearwell?  What am I going to use?  And, that’s where I think new pricing and some of the new products will address that.  I’ve seen some hot new products, especially cloud based products, for small firms.  That’s a big change for this year’s show, which, since it’s in New York, has been geared to big firms and big cases.

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

I think the things that excite me the most that are going on this year are the educational efforts I’m involved in.  They include Ralph Losey’s online educational series through his blog, eDiscovery Team and Craig Ball through the eDiscovery Training Academy at Georgetown Law School in June.  Both are very exciting.

And, my organization, the Gulf Coast Legal Technology Center continues to do a lot of CLE and pro-bono activities for the Mississippi and Louisiana bar, which are still primarily small firms.  We also continue to assist Gulf Coast firms with technology needs as they continue to rebuild their legal technology infrastructure after Katrina.

Thanks, Tom, 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!

eDiscovery Case Law: Responses to FOIA Requests Must Be Searchable

Southern District of New York Judge Shira A. Scheindlin is at it again!  Her latest ruling is that the federal government must provide documents “in a usable format” when it responds to Freedom of Information Act (FOIA) requests.

Noting that “Once again, this Court is required to rule on an eDiscovery issue that could have been avoided had the parties had the good sense to ‘meet and confer,’ ‘cooperate’ and generally make every effort to ‘communicate’ as to the form in which ESI would be produced.”, Judge Scheindlin ruled that federal agencies must turn over documents that include “metadata,” which allows them to be searched and indexed.  Indicating that “common sense dictates” that the handling of FOIA requests should be informed by “the spirit if not the letter” of the Federal Rules of Civil Procedure, Judge Scheindlin indicated the government offered “a lame excuse” for delivering non-searchable documents.

In National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 10 Civ. 3488, the National Day Laborer Organizing Network, Center for Constitutional Rights and the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law sued to require production of a wide range of documents under the Freedom of Information Act in August 2010.  In response, the government agency defendants produced documents grouped together in large files that were not searchable, for which individual documents could not be easily identified, with emails separated from their attachments.

Consistent with the decisions of several state courts regarding their own FOIA statutes, Judge Scheindlin ruled that the federal law requires that metadata, which allows for electronic files to be organized and searched, must be retained in the records agencies produce.  While the federal act doesn’t specifically specify the form in which documents must be delivered, it does require that documents be provided in any “format” that is “readily reproducible” by the agency in that format.  Metadata, in the FOIA context, is “readily reproducible,” Judge Scheindlin noted.

Judge Scheindlin also observed that “whether or not metadata has been specifically requested,” the production of non-searchable documents is “an inappropriate downgrading” of electronically stored information and provision of files “stripped of all metadata and lumped together without any indication of where a record begins and ends” is not an “acceptable form of production,” she said.

A copy of the opinion and order can be found here.

So, what do you think?  Have you been the recipient of a “lumped together” non-searchable production recently?  Please share any comments you might have or if you’d like to know more about a particular topic.