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eDiscovery

eDiscovery Case Law: Appeals Court Decides Spoliation Finding For Not Producing Originals is Bull
 

Including yesterday’s post, this seems to be the week for Third Circuit appeal cases…

In Bull v. UPS Inc., No. 10-4339 (3d Cir. Jan. 4, 2012), the Third Circuit court conceded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information”.  However, it found that in this case, the District Court erred in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.

During a jury trial of a claim of disability discrimination under New Jersey law, the plaintiff (a former UPS employee) testified about two notes that she received from her doctor and faxed to UPS, regarding her neck and shoulder injury. When UPS challenged the authenticity of those notes and sought to block the admission of the faxed copies, the employee's attorney indicating that the original notes no longer existed.  However, the plaintiff testified during examination that she actually still had originals at home.  As a result, the District Court declared a mistrial and encouraged the defendant to file a motion for sanctions.  The plaintiff produced the original doctor’s notes to the court and after considering defendant’s motion for sanctions, the District Court invoked its authority and ordered the case dismissed with prejudice.  Plaintiff appealed.

After carefully examining the record and determining that there was insufficient evidence that the employee intentionally withheld the original notes, the Third Circuit reversed the sanctions, finding doubt whether or not UPS ever properly requested the original documents; and if so, whether plaintiff's counsel ever communicated those requests.

However, the Third Circuit court recognized, in footnote, a “growing concern not implicated in this case”:

“This highlights a growing concern for us that is not directly implicated in this case.  As electronic document technology progresses, the concept of an “original” document is becoming more abstract.  Moving from the more easily distinguishable photocopy or facsimile to documents created, transmitted and stored in an electronic form means that it will be increasingly difficult to ascertain where the boundary of an objectively reasonable duty to preserve such documents lies.  There are—and increasingly will be—circumstances in which the foreseeability of a duty to preserve the information contained in a particular document is distinguishable—under an objective analysis—from the need to preserve that information in its “original” form or format.  Indeed, arriving at a common understanding of what an “original” is in this context is challenging enough.  Although it does, and always will rest with the courts to preserve the distinction between an objectively foreseeable duty and actual knowledge of such a duty, there is a concomitant obligation that counsel must assume to clearly and precisely articulate the need for parties to search for, maintain, and—where necessary—produce “original” or source documents.  This case gives us one more opportunity to highlight our position that clarity in communications from counsel that establish a record of a party's actual knowledge of this duty will ensure that this technology-driven issue does not consume an unduly large portion of the court's attention in future litigation.”

So, what do you think?  Should the sanctions have been reversed?  Or should the producing party be required to produce originals whether they were clearly requested or not?  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: Court Dismisses Identify Theft Case Where No Harm Was Proven
 

In the case Reilly v. Ceridian Corp, 11-1738 (3rd Cir. Dec. 12, 2011), the Third Circuit affirmed the district court’s dismissal of a class action against payroll processing company Ceridian for a data breach, finding that the plaintiffs case lacked merit because their alleged injuries were too speculative.

An unknown hacker breached Ceridian’s Powerpay system in December 2009, potentially gaining access to payroll information such as names, birth dates, bank account numbers and Social Security numbers belonging to approximately 27,000 employees at 1,900 companies. Two individual plaintiffs filed suit on behalf of all of the individuals whose information was exposed in the security breach.  However, the lawsuit did not allege that the hacker actually accessed, misused or copied the data. Instead, the plaintiffs claim was based on an allegedly increased risk of identity theft, emotional distress and the credit-monitoring costs they incurred.

The U.S. Court of Appeals for the Third Circuit upheld a District Court decision dismissing the case, finding that these asserted injuries were too speculative to give the plaintiffs standing to bring a federal lawsuit and emphasized the need for an injury-in-fact, which must be actual or imminent, not hypothetical.

The court distinguished this case from other cases in the Seventh and Ninth Circuits where plaintiffs bringing claims for data breaches were found to have standing. The Third Circuit judges noted that those other cases involved threatened harms that were much more “imminent” and “certainly impending” due to evidence of improper intent (such as the Ninth Circuit case, where an individual had attempted to open a bank account with a plaintiff’s information following the physical theft of a laptop).

Even though the plaintiffs voluntarily expended time and money to monitor their financial situation, the court concluded:

“Here, no evidence suggests that the data has been—or will ever be—misused”…The present test is actuality, not hypothetical speculations concerning the possibility of future injury. Appellants’ allegations of an increased risk of identity theft resulting from a security breach are therefore insufficient to secure standing.”

So, what do you think?  Should the case have been dismissed?  Or should a company be held responsible for security breaches regardless what is done with the data that’s breached?  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: Making the Most of LegalTech
 

It’s that time of year… LegalTech® New York is right around the corner.  People are talking about it, making plans to get together, scheduling demos and meetings, and deciding which parties to attend.  Newbies to the show are excited to go.  More seasoned attendees are looking forward to seeing peers.  It’s a great time to catch up with people and it offers a great opportunity to keep abreast of new industry trends and technology advancements.

Is there a downside? Well, yes, there is.  Attending the show costs money (travel expenses, lost billings, or both).  And more significantly, it eats up one of our scarcest resources:  time.  Some years I’ve questioned whether it was worth it.  Other years, it’s been obviously valuable.  Interestingly, the difference has not had anything to do with the show itself, but rather with my approach to it.  So let me suggest an approach for making the most out of your next LegalTech show.

  1. Establish one or two primary objectives:  Determine what you want to accomplish or what you want to learn, and make those your objectives.  For example, maybe you don’t have experience with predictive coding and want to learn more about it.  Or maybe it’s been awhile since you’ve looked at document review tools and it’s time to re-evaluate them.  Identify specific objectives to focus on.
  2. Identify conference sessions to attend:  Look at the conference schedule and identify sessions aimed at the objectives you’ve established.  Put them on your calendar.
  3. Identify vendors with products and/or services aimed at your areas of interest:  Review the exhibitor list, go to vendor web sites, and make a list of vendors of interest.  Identify the exhibit booths you’d like to visit, and identify the vendors with whom you’d like to meet.
  4. Schedule demos and meetings:  To ensure you meet your objectives, schedule meetings and/or demos with a few vendors. 
  5. Prepare lists of questions:  You will get the most out of meetings/demos with vendors if you are armed with a list of specific questions.  For each of your objectives, identify the questions you should be asking.
  6. Keep good records:  At the show, take good notes and collect contact information.  You will be meeting a lot of people and it will be very difficult to remember everything you’ve learned if you’re not taking good notes!
  7. Take advantage of the networking opportunities:  Get together with peers and talk about what they are doing, what tools they are using, and what approaches they’ve implemented.  Introduce yourself to people you don’t know.  Casual conversations in social situations can be invaluable!
  8. Commit to reporting on what you’ve learned:  Before the show, commit to preparing a report on your findings.  You are more likely to stay focused on your objectives if you’ve committed to reporting on them.

If you haven’t approached LegalTech with this type of plan yet, you may be surprised at what a difference it can make!  Do the up-front leg work, enjoy the show, and make it a good use of your time!

So, what do you think?  Are you ready for LegalTech?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Court Denies Plaintiff Request For Additional Searches for Acronyms
 

In the case In Re: National Association of Music Merchants, Musical Instruments and Equipment Antitrust Litigation, MDL No. 2121 (Dec. 19, 2011), U.S. Magistrate Judge Louisa S. Porter considered a motion by the plaintiffs seeking to compel the defendants to run document searches containing abbreviations and acronyms identified during discovery.  Ruling that the plaintiffs had “ample opportunity” to obtain this discovery earlier in the case, the court denied the motion.

The defendants notified the plaintiffs that they intended to use keyword searches to find relevant documents to plaintiffs’ discovery requests and asked the plaintiffs to provide search terms.  However, the plaintiffs indicated that they could not provide the terms, lacking sufficient information at that point to construct meaningful searches. So, the defendants created their own list of search terms, which they then reviewed with the plaintiffs, who protested that the terms were too restrictive and were unlikely to capture some highly relevant documents. As a result, both sides sat down and negotiated a list of agreed-upon search terms, including several terms specifically targeted to capturing defendant-to-defendant communications.

The defendants began to produce documents based on the agreed-upon terms. Through review of those produced documents, the plaintiffs discovered the frequent use of abbreviations and acronyms and filed a motion seeking to compel the defendants to run document searches containing these abbreviations and acronyms.

While the court noted that keyword searching should be “a cooperative and informed process” and emphasized the importance of “a full and transparent discussion among counsel of the search terminology”, the court chastised the plaintiffs, noting:

“Here, the Court finds Plaintiffs had ample opportunity to obtain discovery regarding abbreviations and acronyms of Defendant companies, and the burden or expense to Defendants in having to comply with Plaintiffs’ request regarding abbreviations and acronyms outweighs its likely benefit. … First, Plaintiffs had two separate opportunities to suggest that Defendants search for abbreviations and acronyms of the Defendant companies; initially, before Defendant’s produced documents; and second, during negotiations between the parties on agreed-upon expanded search terms. In the spirit of the conclusions made at the Sedona Conference, and in light of the transparent discussion among counsel of the search terminology and subsequent agreement on the search method, the Court finds it unreasonable for Defendant to re-search documents they have already searched and produced.

Second, after meeting and conferring with Plaintiffs, and relying on their agreement with Plaintiffs regarding search terms, Defendants have already searched and produced a significant number of documents, thereby incurring significant expenses during this limited discovery period. Further, as articulated by Defendants, the new search terms Plaintiffs have proposed would require some Defendants to review tens of thousands of additional documents that would likely yield only a very small number of additional responsive documents. Therefore, the Court finds a re-search of documents Defendants have already searched and produced is overly burdensome.”

As a result, the court denied the plaintiffs’ request to “run document searches containing abbreviations and acronyms for agreed-upon search terms concepts”.

So, what do you think?  Should the plaintiffs’ have been able to anticipate the abbreviations and acronyms during negotiations or should their motion have been granted to add them later?  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: Sampling within eDiscovery Software

Those of you who have been following this blog since early last year may remember that we published a three part series regarding testing your eDiscovery searches using sampling (as part of the “STARR” approach discussed on this blog about a year ago).  We discussed how to determine the appropriate sample size to test your search, using a sample size calculator (freely available on the web).  We also discussed how to make sure the sample size is randomly selected (again referencing a site freely available on the web for generating the random set).  We even walked through an example of how you can test and refine a search using sampling, saving tens of thousands in review costs with defensible results.

Instead of having to go to all of these external sites to manually size and generate your random sample set, it’s even better when the eDiscovery ECA or review software you’re using handles that process for you.  The latest version of FirstPass®, powered by Venio FPR™, does exactly that.  Version 3.5.1.2 of FirstPass has introduced a sampling module that provides a wizard that walks you through the process of creating a sample set to review to test your searches.  What could be easier?

The wizard begins by providing a dialog to enable the user to select the sampling population.  You can choose from tagged documents from one or more tags, documents in saved search results, documents from one or more selected custodians or all documents in the database.  When choosing tags, you can choose ANY of the selected tags, ALL of the selected tags, or even choose documents NOT in the selected tags (for example, enabling you to test the documents not tagged as responsive to confirm that responsive documents weren’t missed in your search).

You can then specify your confidence level (e.g., 95% confidence level) and confidence interval (a.k.a., margin of error – e.g., 4%) using slider bars.  As you slide the bars to the desired level, the application shows you how that will affect the size of the sample to be retrieved.  You can then name the sample and describe its purpose, then identify whether you want to view the sample set immediately, tag it or place it into a folder.  Once you’ve identified the preferred option for handling your sample set, the wizard gives you a summary form for displaying your choices.  Once you click the Finish button, it creates the sample and gives you a form to show you what it did.  Then, if you chose to view the sample set immediately, it will display the sample set (if not, you can then retrieve the tag or folder containing your sample set).

By managing this process within the software, it saves considerable time outside the application having to identify the sample size and create a randomly selected set of IDs, then go back into the application to retrieve and tag those items as belonging to the sample set (which is how I used to do it).  The end result is simplified and streamlined.

So, what do you think?  Is sample set generation within the ECA or review tool a useful feature?  Please share any comments you might have or if you’d like to know more about a particular topic.

Full disclosure: I work for CloudNine Discovery, which provides SaaS-based eDiscovery review applications FirstPass® (for first pass review) and OnDemand® (for linear review and production).

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: Via Rule 45 Subpoena, Plaintiff Allowed to Search Non-Party Personal Hard Drive
 

A party can subpoena a nonparty to provide a personal computer for the forensic review of electronically stored information (ESI) under Rule 45 of the Federal Rules of Civil Procedure.

In Wood v. Town of Warsaw, N.C., No. 7:10-CV-00219-D, (E.D.N.C. Dec. 22, 2011), a former police chief alleged his former employer unfairly terminated him because of his age under the Age Discrimination in Employment Act. During discovery, the plaintiff sent a non-party subpoena to the former town hall manager, who the plaintiff claimed was responsible for his termination. In the subpoena, the plaintiff asked that the former town manager make his personal computer available for a search by a forensic expert using agreed-upon search terms. He also offered to pay for the cost of the search, excluding any privilege review that the town manager wanted to conduct.

The town manager objected to the subpoena and attempted to modify it, claiming the search would be expensive, would be time-consuming, and would invade his privacy. He also claimed he did not use his personal computer for work. He offered to search the computer himself and provide any documents that were responsive to the plaintiff’s requests in the subpoena.

The court reviewed Rule 45 of the Federal Rules of Civil Procedure, which required it to balance three factors in deciding whether to modify or quash a subpoena: (1) the relevance of the information sought, (2) the plaintiff’s need for the information, and (3) the potential hardship to the non-party. In doing so, it concluded that the plaintiff’s narrow request for “non-privileged documents identified by an electronic search for key words related to the claims and defenses asserted by the parties” was reasonable. The court also noted that “in this age of smart phones and telecommuting, it is increasingly common for work to be conducted outside of the office and through the use of personal electronic devices.” Therefore, it was reasonable to expect to find relevant ESI on the town manager’s computer. Finally, the fact that the plaintiff assumed all of the costs except the privilege review minimized the burden on the town manager.

The court also noted that the subpoena’s requests were limited to tangible documents, not including ESI, and would thus not “encompass the information sought by the request to search [the town manager’s] hard drive.”

Therefore, it ruled that the subpoena was proper but modified it to clarify that the plaintiff was not entitled to the complete contents of the hard drive—just to those responsive to the search terms that were neither privileged nor confidential.

So, what do you think?  Should the search have been allowed?  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).

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: The Sedona Conference International Principles
 

One of our eDiscovery predictions for 2012 was that there would be a continued focus on International eDiscovery and that was also a prediction of three of the other sets of eDiscovery predictions we evaluated.  Multinational companies with operations in the United States are often subject both to the US civil procedure discovery rules as well as the privacy laws of the European Union and other countries where they operate.  Trying to comply with both sets of rules and laws can be difficult when those rules and laws conflict.

To attempt to address those conflicts, Working Group 6 of The Sedona Conference (TSC) has drafted the 2011 Public Comment Version of The Sedona Conference® International Principles on Discovery, Disclosure and Data Protection (“International Principles”), downloadable here.  This is the European Union Edition, which as noted in the Foreward, states “[a]lthough focused principally on the relationship between U.S. preservation and discovery obligations and the EU Data Protection Directive . . . is intended to apply broadly wherever Data Protection Laws, regardless of national origin, conflict with U.S. preservation and discovery obligations”.

As with other TSC “Principles” documents, there are a collection of principles around which the document is built which are listed at the beginning of the document and then discussed within it.  Here are the six principles:

  1. With regard to data that is subject to preservation, disclosure, or discovery, courts and parties should demonstrate due respect to the Data Protection Laws of any foreign sovereign and the interests of any person who is subject to or benefits from such laws.
  2. Where full compliance with both Data Protection Laws and preservation, disclosure, and discovery obligations presents a conflict, a party’s conduct should be judged by a court or data protection authority under a standard of good faith and reasonableness.
  3. Preservation or discovery of Protected Data should be limited in scope to that which is relevant and necessary to support any party’s claim or defense in order to minimize conflicts of law and impact on the Data Subject.
  4. Where a conflict exists between Data Protection Laws and preservation, disclosure, or discovery obligations, a stipulation or court order should be employed to protect Protected Data and minimize the conflict.
  5. A Data Controller subject to preservation, disclosure, or discovery obligations should be prepared to demonstrate that data protection obligations have been addressed and that appropriate data protection safeguards have been instituted.
  6. Data Controllers should retain Protected Data only as long as necessary to satisfy legal or business needs. While a legal action is pending or remains reasonably anticipated, Data Controllers should preserve relevant information, including relevant Protected Data, with appropriate data safeguards.

The appendices include a 15 page Model Protected Data Protective Order and a Cross-Border Data Safeguarding Process + Transfer Protocol, which is an ease-of-reference guide identifying common techniques for achieving best possible legal compliance with conflicting U.S. eDiscovery rules and Data Protection laws when processing and transferring foreign data for U.S. litigation.

As noted in the document, “[o]ther editions of the International Principles are planned for publication by Working Group 6 that will focus on sovereign countries or regions other than the EU and the intersection of their data protection laws and U.S. preservation and discovery requirements.”  So, there is more to come!

To submit a public comment, you can download a public comment form here, complete it and fax (yes, I said fax) it to The Sedona Conference® at 928-284-4240.  You can also email a general comment to them at tsc@sedona.net.

So, what do you think?  Do the International Principles provide significant guidance for addressing international discovery issues?  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: Defendants Not Required to Share Costs for Plaintiff’s Third Party Request
 

After recapping 2011 case law over four days last week, it seems appropriate to move on to new cases, starting with a couple of stragglers from last year.

In Last Atlantis Capital LLC v. AGS Specialist Partners, No. 04 C 0397, 2011 WL 6097769 (N.D. Ill. Dec. 5, 2011), the plaintiffs proposed that the defendants share in the cost of obtaining data that Plaintiffs subpoenaed from third parties.  The court noted that all parties “involved herein are aware that the linchpin of this entire matter” was to obtain this audit trail data for analysis.  The court had also previously suggested (at a September status conference) “in an effort to accelerate this protracted litigation” that it would be “reasonable” for Defendants to aid in half the costs.  Nonetheless, the court rejected the plaintiff’s proposal for cost-sharing in this case, rejecting the plaintiff arguments for doing so.  Here are the arguments and the court’s rejection of each:

  • Court's comments during the September Status Conference as evidence that costs should be shared: While the court admitted to suggesting to Defendants that Plaintiffs' proposal of cost sharing sounded “reasonable”, those comments “were made to encourage movement within this stagnant litigation”.  Once the Court was able to further research the precedent surrounding cost-sharing, it found no basis for accepting the Plaintiffs' cost-sharing proposal.
  • Plaintiffs' reliance upon the Sedona Conference Commentary on Non–Party Production & Rule 45 Subpoenas, 9 Sedona Conf. J. 197 (2008): The court felt that this Sedona Conference Commentary was “almost entirely irrelevant” to the matter at hand  as it “is largely concerned with the burden being placed on a non-party to produce information”.  Despite the fact that the Commentary “includes a suggestion that parties meet and confer to ‘address’ cost-sharing, amongst other things, in their initial Rule 26(f) conference”, it did not dictate such an arrangement; rather, the Commentary declares that “[c]ost-shifting or cost-sharing are inconsistent with the so-called ‘American Rule’ that each party bears its own litigation costs”.
  • Other Court Opinions: The plaintiffs cited several court opinions – such as Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 573 (N.D.Ill.2004) and Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 320 (S.D.N.Y.2003) – to attempt to bolster their argument.  However, the court noted that all of the court opinions “miss the mark as they each address the issue of cost-sharing amongst the requesting party and the producing party, not between a requesting party and a non-requesting, non-producing opponent in the underlying litigation, such as with Defendants.”

The court acknowledged that the defendants had “substantially more resources,” but noted that was a fact it could not consider.  Therefore, the court ruled that “it would not force Defendants to pay for the evidence that Plaintiffs need in order to prove their case against Defendants” and the plaintiffs’ proposal for cost-shifting was denied.

So, what do you think?  Should the defendant have been required to share in the costs?  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: ARMA International and EDRM Jointly Release Information Governance White Paper
 

A few months ago, the Electronic Discovery Reference Model (EDRM) and ARMA International announced that they would be collaborating on information governance guidelines for eDiscovery.  It only took them a little over three months to release their first work product.

On December 20 of last year, ARMA and EDRM announced the publication of a jointly developed white paper entitled, How the Information Governance Reference Model (IGRM) Complements ARMA International’s Generally Accepted Recordkeeping Principles (GARP).  The press release announcing the release of the white paper can be found on the EDRM site here.  The web version of the paper is located here and the PDF version can be downloaded here.

The core of the paper is to relate the EDRM Information Governance Reference Model (IGRM) to ARMA’s GARP® principles.  There are eight GARP principles, as follows:

  1. Accountability
  2. Transparency
  3. Integrity
  4. Protection
  5. Compliance
  6. Availability
  7. Retention
  8. Disposition

The white paper provides a chart for assigning ownership to each business unit for each GARP principle and describes the Maturity Model with five levels of effective Information Governance, ranging from Level 1 (Sub-standard) to Level 5 (Transformational).  Transformational describes “an organization that has integrated information governance into its overall corporate infrastructure and business processes to such an extent that compliance with the program requirements is routine”.  Based on the CGOC Information Governance Benchmark Report from a little over a year ago, most organizations have quite a bit of maturing still to do.

The white paper then proceeds to describe each of the eight principles “According to GARP” at Level 5 Transformational Maturity.  Where’s Robin Williams when you need him?  The white paper finishes with several conclusions noting that “the IGRM complements the metrics defined by ARMA International’s Information Governance Maturity Model”.

This white paper provides a great overview of both the IGRM and ARMA GARP principles and is well worth reading to develop an understanding of both models.  It will be interesting to see how the EDRM and ARMA joint effort proceeds from here to help organizations achieve a higher level of “maturity” when it comes to information governance.

So, what do you think?  Have you read the white paper yet?  Do you think the EDRM/ARMA collaboration will lead to greater information governance within organizations?  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 Year in Review: eDiscovery Case Law, Part 4
 

As we noted the past three days, eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases!  Yesterday, we looked back at cases related to discovery of social media.  One final set of cases to review.

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

SANCTIONS / SPOLIATION

Behold the king!  I’ll bet that you won’t be surprised that the topic with the largest number of case law decisions (by far!) related to eDiscovery are those related to sanctions and spoliation issues.  Late in 2010, eDiscovery Daily reported on a Duke Law Journal article that indicated back then that sanctions were at an all-time high and the number of cases with sanction awards remains high.

Of the 50 cases we covered this past year, over a third of them (17 total cases) related to sanctions and spoliation issues.  Here they are.  And, as you’ll see by the first case (and a few others), sanctions requested are not always granted.  Then again, sometimes both sides get sanctioned!

No Sanctions for Scrubbing Computers Assumed to be Imaged.  In this case, data relevant to the case was lost when computers were scrubbed and sold by the defendants with the permission of the court-appointed Receiver, based on the Receiver’s mistaken belief that all relevant computers had been imaged and instruction to the defendants to scrub all computers before selling.  Because of the loss of this data, defendants filed a motion for spoliation sanctions for what they described as “the FTC’s bad-faith destruction of Defendants’ computer systems.”  Was the motion granted?

Spoliate Evidence, Don’t Go to Jail, but Pay a Million Dollars.  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". However, ruling on the defendants’ appeal, District Court Judge Marvin J. Garbis declined to adopt the order regarding incarceration, stating it was not "appropriate to Order Defendant Pappas incarcerated for future possible failure to comply with his obligation to make payment…". So, how much was he ordered to pay?  Now we know.  That decision was affirmed here.

Deliberately Produce Wrong Cell Phone, Get Sanctioned.  In this case, the plaintiff originally resisted production of a laptop and a cell phone for examination, but ultimately produced a laptop and cell phone. The problem with that production? After examination, it was determined that neither device was in use during the relevant time period and the actual devices used during that time frame were no longer in plaintiff’s possession. When requested to explain as to why this was not disclosed initially, the plaintiff’s attorney explained that he was torn between his “competing duties” of protecting his client and candor to the court.  Really?

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."

Conclusion of Case Does Not Preclude Later Sanctions.  In this products liability case that had been settled a year earlier, the plaintiff sought to re-open the case and requested sanctions alleging the defendant systematically destroyed evidence, failed to produce relevant documents and committed other discovery violations in bad faith. As Yogi Berra would say, “It ain’t over ‘til it’s over”.

Written Litigation Hold Notice Not Required.  The Pension Committee case was one of the most important cases of 2010 (or any year, for that matter). So, perhaps it’s not surprising that it is starting to become frequently cited by those looking for sanction for failure to issue a written litigation hold. In this case, the defendant cited Pension Committee, arguing that plaintiff’s failure to issue a written litigation hold and subsequent failure to produce three allegedly relevant emails allowed for a presumption that relevant evidence was lost, thereby warranting spoliation sanctions.  Was the court’s ruling consistent with Pension Committee?

No Sanctions Ordered for Failure to Preserve Backups.  A sanctions motion has been dismissed by the U.S. District Court of Texas in a recent case involving electronic backups and email records, on the grounds that there was no duty to preserve backup tapes and no bad faith in overwriting records.

Discovery Violations Result in Sanctions Against Plaintiff and Counsel.  Both the plaintiff and plaintiff's counsel have been ordered to pay sanctions for discovery abuses in a lawsuit in Washington court that was dismissed with prejudice on June 8, 2011.

Meet and Confer is Too Late for Preservation Hold.  A US District court in Indiana ruled on June 28 in favor of a motion for an Order to Secure Evidence in an employment discrimination lawsuit. The defendant had given the plaintiff reason to believe that emails and other relevant documents might be destroyed prior to Rule 26(f) meeting between the parties or Rule 16(b) discovery conference with the court. As a result, the plaintiff formally requested a litigation hold on all potentially relevant documents, which was approved by US Magistrate Judge Andrew Rodovich.

Court Orders Sanctions in Response to "Callous and Careless Attitude" of Defendant in Discovery.  A Special Master determined that multiple discovery failures on the part of the defendant in an indemnity action were due to discovery procedures "wholly devoid of competence, yet only once motivated by guile". Accordingly, the court ordered sanctions against the defendant and also ordered the defendant to pay all costs associated with its discovery failures, including plaintiff's attorney fees and costs.

Court Upholds Sanctions for Intentional Spoliation of Unallocated Space Data.  The Supreme Court of Delaware recently upheld the sanctions against the defendant for wiping the unallocated space on his company’s computer system, despite a court order prohibiting such destruction. In this case, Arie Genger, CEO of Trans-Resources, Inc., argued that sanctions against him were unreasonable and made a motion for the court to overturn its previous decision regarding spoliation of discovery materials. Instead, after due process, the court upheld its earlier decision.

Sanctions for Spoliation, Even When Much of the Data Was Restored.  A Virginia court recently ordered sanctions against the defendant in a case of deliberate spoliation of electronic discovery documents. In this case, the defendant was found to have committed spoliation "in bad faith" in a manner that constituted a "violation of duty… to the Court and the judicial process."

"Untimely" Motion for Sanctions for Spoliation Denied.  A recent ruling by the US District Court of Tennessee has denied a motion for sanctions for spoliation on the grounds that the motion was "untimely." In this case, the plaintiff argued that the defendants' admitted failure to preserve evidence "warrants a harsh penalty," but the court found in favor of the defense that the motion was untimely.

Defendant Sanctioned for Abandonment and Sale of Server; Defendants' Counsel Unaware of Spoliation.  An Illinois District Court ordered heavy sanctions against the defense for spoliation "willfully and in bad faith" of documents stored on a server, in a case revolving around damages sought for breach of loan agreements.

Facebook Spoliation Significantly Mitigates Plaintiff’s Win.  In this case with both social media and spoliation issues, monetary sanctions were ordered against the plaintiff and his counsel for significant discovery violations. Those violations included intentional deletion of pictures on the plaintiff’s Facebook page as instructed by his Counsel as well as subsequent efforts to cover those instructions up, among others.

Lilly Fails to Meet its eDiscovery Burden, Sanctions Ordered.  In this case, a Tennessee District court found that “Lilly failed to take reasonable steps to preserve, search for, and collect potentially relevant information, particularly electronic data, after its duty to preserve evidence was triggered by being served with the complaint.” As a result, the court ordered sanctions against Lilly. How far did the court go with those sanctions?

Court Grants Adverse Inference Sanctions Against BOTH Sides.  Have you ever seen the video where two boxers knock each other out at the same time? That’s similar to what happened in this case. In this case, the court addressed the parties’ cross motions for sanctions, ordering an adverse inference for the defendants’ failure to preserve relevant video surveillance footage, as well as an adverse inference for the plaintiff’s failure to preserve relevant witness statements. The court also awarded defendants attorneys’ fees and costs and ordered re-deposition of several witnesses at the plaintiff’s expense due to other plaintiff spoliation findings.

Next week, we will begin looking ahead at 2012 and expected eDiscovery trends for the coming year.

So, what do you think?  Of all of the cases that we have recapped over the past four days, which case do you think was the most significant?  Please share any comments you might have or if you’d like to know more about a particular topic.