Close
Enter your
text here

Electronic Discovery

Court Orders Non Party to Preserve Some, But Not All, Information Requested by Plaintiff: eDiscovery Case Law

In Swetlic Chiropractic & Rehabilitation Center, Inc. v. Foot Levelers, Inc., et. al., No. 16-236 (S.D. Ohio, Apr. 27, 2016), Ohio Magistrate Judge Elizabeth A. Preston Deavers ruled that the plaintiff had satisfied its burden to demonstrate a real danger that relevant evidence in a non-party’s possession would be destroyed absent a court order and ordered WestFax, the non-party, “to preserve any transmission report or other documents and ESI that identify fax numbers that received Defendants’ advertising faxes.”  However, noting that the requested scope of the preservation order “appears overly broad”, she permitted WestFax to file objections to the Order within 14 days if unable to extrajudicially resolve any such objection with the plaintiff.

Case Background

In this case, the plaintiff filed suit, alleging that the defendants sent advertisements to the plaintiff and others in violation of the Telephone Consumer Protection Act (“TCPA”).  The plaintiff determined that non-party WestFax could have transmission reports and other electronically stored information (“ESI”) that identify fax numbers that received the defendants’ advertising faxes and asserted a need for this information to establish which recipients are in the proposed class and how many violations of the TCPA occurred.

WestFax indicated to the plaintiff that transmission reports are automatically deleted within sixty to ninety days following each fax broadcast and it would only preserve the evidence with an appropriate Court Order.  As a result, the plaintiff sought an Order compelling non-party WestFax to preserve several categories of ESI related to the defendants, including email, databases, logs, application files and fragments, and all email from third party resources (e.g. Hotmail, Yahoo, Gmail, AOL, etc.), directing it to preserve the information through obtaining an “exact mirror (‘bit stream’) image” with regard to online storage, storage devices, stand-alone computers, and network workstations.

Judge’s Ruling

Noting that “Plaintiff has demonstrated that as a result of WestFax’s alleged retention policies, evidence relevant to this action may be destroyed absent a Court Order”, Judge Deavers concluded that “Plaintiff has satisfied its burden to seek a discovery order at this juncture notwithstanding that the parties have not conducted their Rule 26(f) conference.”  Given WestFax’s alleged refusal to retain information absent a court order, Judge Deavers found that there is a “lack of any other available remedy.”

However, noting that “it appears that Plaintiff failed to serve the subject Motion on WestFax such that it is unlikely that it has had an opportunity to voice any such objection”, expressing “concerns with the breadth of the information Plaintiff is requesting the Court to order WestFax to preserve” and also with the “exact mirror (‘bit stream’) image” method proposed by the plaintiff, Judge Deavers ruled that the plaintiff had “failed to demonstrate that the requested order would not be unduly burdensome and has further failed to establish that mirror imaging is necessary.”  So, Judge Deavers ordered WestFax “to preserve any transmission report or other documents and ESI that identify fax numbers that received Defendants’ advertising faxes”, but permitted WestFax to file objections to the Order within 14 days if unable to extrajudicially resolve any such objection with the plaintiff.

So, what do you think?  How far should courts go to order non-parties to preserve potentially responsive ESI?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Tuesday LTWC 2016 Sessions: eDiscovery Trends

As noted yesterday, LegalTech West Coast 2016 (LTWC) is happening this week in San Francisco and eDiscovery Daily is reporting about the latest eDiscovery trends being discussed at the show.  If you’re in the San Francisco area, today is the last day to come check out the show – there are a number of sessions available and at least 56 exhibitors providing information on their products and services.

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 24 hits.  Sessions in the main conference tracks include:

9:00 AM – 10:00 AM:

The Encryption Debate: Privacy, Public Safety and Data Security

Apple vs. FBI in the wake of the San Bernardino shooters. The Paris and Brussels attacks. Is it possible to find a balance between protecting user privacy while ensuring national security and public safety? Join us as advocates for each side argue their stance in this hot button debate.

Speakers are: David Bitkower, Principal Deputy Assistant Attorney General, Criminal Division, US Department of Justice; Anthony D. Romero, Executive Director, American Civil Liberties Union.  Discussion Leader: Erin E. Harrison, Editor in Chief, Legaltech News, ALM.

10:30 AM – 11:30 AM:

Information Governance and the Updated FRCP: Speed, Proportionality, Preservation and Ethical Challenges

  • How have the December 2015 changes to the Federal Rules of Civil Procedure altered legal strategies in the discovery process and thus the information governance efforts necessary to support those strategies?
  • Mapping and categorizing data sets proactively will help information governance professionals identify and preserve potentially relevant information more quickly when the inevitable lawsuit ensues.
  • Defending the identification and preservation processes will depend on effective information governance disciplines while preparing for, and reacting to, litigation.
  • Navigating potential ethical challenges as to advice on data retention and disposition in light of the updated Rules.

Speakers are: John Janhunen, Corporate Counsel, Google Inc.; Heidi Maher, Executive Director, CGOC.  Discussion Leader: John Isaza, Partner, Rimon PC.

Legal Innovation Lightning Round One

Join us for a series of fast-paced, successive demos and talks featuring the latest emerging legal tech companies working to advance the legal system. During this Shark Tank­ style session, our presenters have the opportunity to “pitch” their products to and receive feedback from a panel of judges consisting of investors, academics and industry giants.

Speakers and Judges to include are: David Fisher, CEO & Founder, ClearLegal; David Slonim, Co-Founder, EstatePass; Monica Bay, Fellow, CodeX; Nicole Shanahan, Fellow , CodeX.  Discussion Leader: Oliver Goodenough, Professor and Co-Director of the Center for Legal Innovation, Vermont Law School.

Ethical Considerations for Machine Learning and Other Future Technologies

Can technology perform the same tasks as a human lawyer? This session explores how computers will soon transform the delivery of legal services. Attendees gain an understanding of the various legal capabilities of computers in the near-future, enabling law firms to work smarter and more efficiently.

Speakers to include are: Dr. Zev J. Eigen, Global Director of Analytics, Littler Mendelson, PC; Judy Selby, Former Partner and Co-leader, Information Governance Team, BakerHostetler.  Discussion Leader: Carolyn Southerland, Managing Director, Morae Legal, Member, Houston Chapter of Women in eDiscovery.

1:30 PM – 2:30 PM:

Can Proportionality in Discovery Finally Be Realized with the New Federal Rules?

  • Can the new Rules finally fulfill the promise of a “just, speedy, and inexpensive” process?
  • Are companies reconsidering what’s reasonable for preservation?
  • Has the plaintiff’s bar been frustrated in obtaining discovery as it feared?
  • Are the parties having more meaningful Rule 26(f) conferences?
  • How will proportionality considerations affect third party subpoenas?

Speakers to include: Mira Edelman, Senior Discovery Counsel, Google Inc.; Hon. Andrew J. Peck, United States Magistrate Judge, United States District Court, Southern District of New York; David L. Stanton, Litigation Partner and Information Law & Electronic Discovery Team Leader, Pillsbury Winthrop Shaw Pittman LLP.  Discussion Leader: Patrick Oot, Partner, Shook, Hardy & Bacon LLP.

Legal Innovation Lightning Round Two

In continuation of this morning’s session, participants hear from a second group of legal technology disruptors who demonstrate how they are working to revolutionize the law. During this Shark Tank­ style session, presenters have the opportunity to get in front of our esteemed panel of judges who represent various players in the legal tech ecosystem; panelists will in turn share their views on each presentation.

Speakers and Judges to include are: Leila Banijamali, Founder and General Counsel, Startup Documents; Noory Bechor, CEO & Founder, LawGeex; Kevin Miller, CEO & Founder, Legal Sifter; Jonathan Pyle, Founder , Docassemble; Monica Bay, Fellow, CodeX; Oliver Goodenough, Professor and Co-Director of the Center for Legal Innovation, Vermont Law School.  Discussion Leader: Nicole Shanahan, Fellow , CodeX.

E-Discovery Rainmaking at the Law Firm: A New Model for Processing Hosting and Review

As law firms start to insource more and more of their clients work – cost effectively – the paradigm for using third party vendors has shifted to software as a service and enterprise deployments offered by the firm from the traditional client-firm-vendor trifecta. This case study illustrates how one law firm is successfully offering e-discovery services effectively through managed services partnerships with discovery software and service vendors.

Speakers to include are: Robert E. Tonn, Partner, Holland & Knight LLP; Joan Washburn, Director of Litigation/eDiscovery Services, Holland & Knight LLP.

2:45 PM – 3:45 PM:

Incident Readiness: The Role of Information Governance in Mitigating Breach Exposure

  • Information breaches are increasingly common. In today’s business environment, information is power, and those who control information have the most power.  Bad actors are incentivized to break in, or recruit insiders, to steal data – to sell identities on the black market, as hacktivists to make a socio-political statement, as disgruntled employees and customers to get back at a corporation they think wronged them.
  • In most of the recent high-profile data breaches, the bad actors were in the systems for a long time, acting unbeknownst to their victim and with little resistance; and the scope of the breaches were difficult to quickly ascertain. Most security experts agree that perimeter security is important but isn’t near enough – so what else can we do?
  • In this session our expert panel will explore the relationship between Information Governance and Information Security and answer important questions such as:
    • What role can IG play in helping companies detect breaches more quickly and have greater confidence that they can identify the information that was at risk or stolen?
    • How can IG support an organization’s ability to establish better security protocols and processes?
    • What disciplines exist in a mature IG program that can aid in evaluating the impact of a breach?

Speakers to include: Jeffrey J. Beard, Esq., GRC & IG Leader, IBM; Michael S. Dicke, Partner, Securities Litigation, Fenwick & West LLP; Tolga Erbay, Senior Manager, Security Risk and Compliance, Dropbox.  Discussion Leader: John Isaza, Partner, Rimon PC.

In addition to these, there are other sessions today that might be of interest.  For a complete description for all sessions today, click here.

So, what do you think?  Did you attend LTWC this year?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Welcome to LegalTech West Coast 2016!: eDiscovery Trends

Today is the start of LegalTech® West Coast 2016 (LTWC) in San Francisco –and eDiscovery Daily is reporting about the latest eDiscovery trends being discussed at the show.  Today and tomorrow, we will provide a description of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the San Francisco area, come check out the show – there are a number of sessions (both paid and free) available and at least 56 exhibitors providing information on their products and services.

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 31 hits.  Sessions in the main conference tracks include:

10:30 AM – 11:45 AM:

The Evolving Forensic Technology Landscape

In this program, experienced technologists will discuss current issues in forensics and collections, including:

  • What are the latest challenges around collection of ESI?
  • How are technology advances in computers, systems, and mobile devices changing forensics?
  • What lessons about collections and forensics can we learn from recent high-profile cases?
  • How are organizations facing the newest challenge: Data collection from Internet of Things (IoT) devices?

Speakers are: Bryon Bratcher, Director of Practice Support, Reed Smith LLP; Benjamin Robbins, eDiscovery and Information Governance, LinkedIn; Christopher Sitter, EnCE, eDiscovery & Digital Forensics Senior Manager, Juniper Networks.  Discussion Leader: Daniel Blair, Vice President for Innovative Strategies, DiscoverReady.

12:30 PM – 1:30 PM:

Moving Beyond E-Discovery Review: TAR for Smart People

Once controversial, technology assisted review (TAR) has gained judicial acceptance and is increasingly used for production reviews. Today, the challenge is to take TAR to the next level, using it for a variety of purposes including investigations, early case assessment, criminal matters, inbound productions, privilege protection and more.

Smart legal professionals are using a new TAR protocol called continuous active learning (CAL), which has proven more effective because the system gets smarter as a review progresses. Now you find can relevant documents faster—at lower cost. CAL also handles rolling deliveries and works with low-richness collections.

Join our panel of e-discovery veterans for an informative look at how corporations and their law firms are moving beyond simple e-discovery review with the power of TAR and CAL. Our panelists will discuss:

  • How CAL works and why it matters
  • A trial lawyer’s perspective on using TAR within a law firm
  • An in-house counsel’s view of TAR for corporate litigation
  • Using TAR for criminal matters and for civil investigations

In this hour, we’ll take a hard look at the future of TAR for 2016 and beyond. Attendees will receive a free copy of the newly released second edition of Catalyst’s popular book, “TAR for Smart People: How Technology Assisted Review Works and Why It Matters for Legal Professionals.”

Speakers to include: Russell M. Aoki, Partner, Aoki Law PLLC; Dera J. Nevin, Director, eDiscovery Services, Proskauer Rose LLP; Daniel J. Polatsek, Partner, Katten Muchin Rosenman LLP; Sharyn M. Procaccio, Vice President, Assistant General Counsel, Hunt Companies Inc.  Discussion Leader: John Tredennick, CEO and Founder, Catalyst Repository Systems, Inc.

2:00 PM – 3:15 PM:

The Latest US-EU Cross-Border Privacy Issues

In the wake of the invalidation of the US-EU Safe Harbor Agreement, this panel of experts will explore the current state of affairs for cross-border data transfers and discovery, including:

  • Viable alternatives for transferring data from the EU
  • Ethical and legal considerations in the new EU-US Privacy Shield
  • The new EU-US Privacy Shield Agreement
  • The new EU General Data Protection Regulation and the “Right to be Forgotten”
  • Effective strategies for cross-border discovery
  • Effective strategies and ethical obligations for cross-border discovery
  • Updates on recent high-profile cases

Speakers to include are: David R. Cohen, Partner and Practice Group Leader Records & E-Discovery , Reed Smith LLP; Sylvie Stulic, Manager, Legal Operations and Litigation, Electronic Arts, Inc.; Brock A. Wanless, Assistant General Counsel – Government, Regulatory, and Privacy, Groupon.  Discussion Leader: Jeanne Somma, Discovery Practice Director, DiscoverReady.

3:45 PM – 5:00 PM:

Judicial Perspective: Six Months In, Are the New Federal Rules Having the Intended Effects?

In what promises to be one of most informative sessions at Legaltech, a panel of the most well-respected and experienced judges in legal technology will examine the impact of the recent amendments to the Federal Rules of Civil Procedure, including:

  • What themes are emerging in judicial decisions under the new Rules?
  • How has the emphasis on proportionality changed discovery?
  • Has amended Rule 34 really changed the way parties respond to discovery requests?
  • Are proportionality motions the new Daubert?
  • What issues do judges think will impact discovery in the next year?

Speakers to include are: Hon. Mitchell D. Dembin, United States Magistrate Judge, United States District Court, Southern District of California; Hon. Elizabeth D. Laporte, United States Magistrate Judge, United States District Court, Northern District of California; Hon. Andrew J. Peck, United States Magistrate Judge , United States District Court, Southern District of New York.  Discussion Leader: Maureen O’Neill, Senior Vice President, DiscoverReady.

In addition to these, there are other sessions today that might be of interest.  For a complete description for all sessions today, click here.

So, what do you think?  Are you planning to attend LTWC this year?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Here’s How You Can Catch our Webinar on How Automation is Revolutionizing eDiscovery: eDiscovery Trends

We had a terrific turnout for our special webinar on Wednesday conducted by Rob Robinson and me titled Faster, Cheaper, Better: How Automation is Revolutionizing eDiscovery, hosted by the Organization of Legal Professionals (OLP)!  But, not all of you could make it.  We get it – you’re busy.  No worries, you can check it out on demand within this post!

During the webinar, we started off with a history lesson as I discussed the historical application of automation in the discovery process, focused on the application of artificial intelligence technology through the evolution and judicial acceptance of technology assisted review.  I then talked about the emergence of artificial intelligence technology in other areas, including pre-litigation.

Rob then discussed the drivers for eDiscovery automation in terms of the biggest challenges faced by organizations today in managing eDiscovery, as well as the business opportunity of where the eDiscovery market is heading and how automation is helping drive the growth in the market.  Rob also discussed the evolution of eDiscovery technology and he walked through a brief exercise on how to consider and compare eDiscovery offerings to meet your needs.

Having set the framework for understanding the drivers and offerings in the market, Rob then defined eDiscovery automation, explaining the difference between task automation and process automation and providing examples of each.

With that framework established, I then walked through an example of task and process automation using CloudNine’s eDiscovery automation platform to demonstrate the automation of signing up for an account, uploading data for processing, as well as culling, searching and reviewing that data – all without any human interaction required!  We finished the webinar by sharing references to several good articles on the topic of eDiscovery automation and answering several good questions from the audience about the state of automation in the industry and other related topics.

If you’re interested in learning more about how automation is revolutionizing eDiscovery, or are simply interested in checking out a good, high-level demo of CloudNine’s platform (shameless plug warning!), I encourage you to check it out below (thanks, Rob!).

Also, if you did not sign up for the webinar and may not be able to check out the video right away, but would like a copy of the slides and the references to the eDiscovery automation articles, feel free to email me at daustin@cloudnincloudnine.comm and I would be happy to send you a copy.

Finally, if you’d simply like to sign up for a free account and try CloudNine for yourself, click here!

So, what do you think?  Do you think that automation is revolutionizing eDiscovery?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Masters Conference 2016 in New York City on July 11, 2016

Whether you’re dealing with e-discovery in a new, socially networked world, find your company expanding globally and thus facing international discovery issues, or planning for the future of e-discovery in your firm or company, you know there’s a divide between what is in practice today and where your firm needs to be in the near future. Legal professionals must develop strategies for spanning this e-discovery divide before it expands further across traditional borders, whether physical or technical.

Litigation support professionals and attorneys have a new forum to gather the latest information on e-discovery, data protection, records management and more: The Masters Series for Legal Professionals.

Masters Conference – New York

  • Date: July 11, 2016
  • Location: New York City, New York
  • Sponsorship: CloudNine is proud to serve as a presenting sponsor and panel host.
  • Speaker: Doug Austin, Vice President of Professional Services, CloudNine

Learn More

CloudsNine_400x400_Transparent

Defendant Requests Terminating Sanctions for Plaintiff, but Court Opts for Lesser Sanctions: eDiscovery Case Law

In Applied Underwriters, Inc. v. American Employer Group, No. 14-00379 (E.D. Tenn., May 2, 2016), Tennessee Magistrate Judge C. Clifford Shirley, Jr., ruling on several motions, granted in part and denied in part the defendant’s motion for sanctions, agreeing that the plaintiff’s numerous discovery deficiencies warranted sanctions, but not the dismissal that the defendant requested, opting instead to require the plaintiff to pay attorney’s fees for filing the motion.

Case Background

In this case which involved numerous discovery disputes, the defendant asserted that the plaintiff failed to comply with the Court’s discovery Orders, failed to follow the procedures set forth in the parties’ discovery plan, failed to follow the directives of the Court’s Protective Order, failed to follow the requirements of the Federal Rules of Civil Procedure, and failed to confer in good faith about discovery issues, arguing that the plaintiff produced a classic “document dump” when it produced its ESI.  At a hearing regarding the case, the defendant identified eleven deficiencies with the plaintiff’s production, including:

  1. failing to search for the agreed upon terms in creating the collective universe;
  2. failing to search the computer systems of several individuals that were agreed upon;
  3. failing to review the documents before producing;
  4. producing the documents out of order, without attachments, and without proper load files;
  5. failing to apply proper Bates stamps to some of the ESI;
  6. producing all four million pages with the “Attorney Eyes Only” designation;
  7. failing to produce the ESI in the format indicated in the parties agreement pursuant to the Rule 26(f) Report;
  8. submitting the document production without extracted OCR text and load files;
  9. producing ESI duplicative of that produced in previous discovery;
  10. producing “a number of folders, sub-folders, and sub-sub level folders with file names that do not make sense”; and
  11. not providing a spreadsheet to explain which documents are relevant to which request contrary to the parties’ agreement.

Other than that, the plaintiff’s document production was perfect… :o)

The defendant requested that the Court dismiss the lawsuit, or in the alternative, stay the case until the plaintiff obeyed the Court’s Orders and fully complied with its discovery obligations, also requesting an award to compensate it for the fees and costs it incurred in responding to and overcoming the Plaintiff’s discovery misconduct and its fees and costs associated with re-taking depositions.

Judge’s Ruling

Regarding the plaintiff’s production after they asked for additional time to produce the ESI requested, Judge Shirley stated that “contrary to the parties’ agreement and the Court’s Order, the Plaintiff did not perform the additional searches per the protocols discussed, i.e., performing searches on specifically named individuals’ computers. Moreover, when the March 8 discovery was produced, it was contrary to the plan set forth in the Rule 26(f) Report, it was unorganized, it failed to identify which document request it was answering, and it was all produced “Attorney’s Eyes Only.” Accordingly, the Court finds that sanctions are appropriate.”

Shirley, you can’t be serious!

However, Judge Shirley stopped short of ordering the harsh sanction of dismissal, stating “[w]hile the Court finds that sanctions are appropriate, the Court does not find that Plaintiff’s deficiencies warrant dismissal…As discussed at the hearing, instead of dismissal, the Court finds that the Plaintiff shall pay for the reasonable attorney’s fees and costs associated with the Defendant’s Motion for Sanctions, including the other Motions and filings that relate to the Plaintiff’s discovery deficiencies.”  Judge Shirley also ordered the plaintiff to pay “for the reasonable expenses, not to include attorney’s fees, for retaking” several depositions, including the plaintiff’s Rule 30(b)(6) witness’s depositions.

So, what do you think?  Were those sanctions sufficient?  How does Judge Shirley respond when somebody tells him “surely, you can’t be serious”?  (Seriously, I want to know).  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Defendant Ordered to Issue Litigation Hold, Respond to Discovery Requests: eDiscovery Case Law

In Bruner v. American Honda Motor Co., No. 1:15-00499-N (S.D.Ala. May 12, 2016), Alabama Magistrate Judge Katherine P. Nelson granted the plaintiffs’ motion to compel response to discovery requests for email, to perform additional searches, and to implement a litigation hold on the email accounts for relevant individuals to the case.

Case Background

In this case stemming from an accident involving a 2007 Honda Civic, the plaintiffs alleged a number of counts, including negligence, wantonness, loss of consortium, and manufacturer’s liability claims.  The parties had a dispute regarding the production of emails in response to the plaintiffs’ requests for production and whether Defendant or its counsel should issue a litigation hold in this action.  Counsel for the defendant claimed that any relevant e-mails were “no longer retained due to the passage of time in accordance with the relevant Document Retention Policy(ies)” and also contended that it had conducted thorough searches of customer complaints and related email in response to the requests for production and found no responsive e-mails, claiming that additional searches or implementation of a litigation hold would be unnecessarily burdensome.

The plaintiffs argued that further searches should be conducted to discover and identify any responsive e-mails, stating that the searches of one particular customer database could not be accurate since it references e-mails which it does not include or attach.  The plaintiffs also argued that the defendant’s retention policy is either “in violation of [Defendant’s] duty to preserve ESI, or [Defendant] is not conducting a thorough search.”  The plaintiffs filed a motion to compel the defendant “to conduct a thorough search of identified custodians with identified search terms and to issue a litigation hold in this case” as well as to direct the defendant to implement a litigation hold so that it is not continuously deleting any relevant e-mails.

Judge’s Ruling

Citing Zubulake v. UBS Warburg, Judge Nelson noted that “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents”.  With regard to this case, she stated:

“The deletion of potentially relevant emails since the instigation of this action is unreasonable considering their potential importance to this litigation. Additionally, the deletion of some responsive emails does not absolve Defendant of its obligation to thoroughly search for still-extant ESI.”

As a result, Judge Nelson concurred with the plaintiffs that a litigation hold is necessary to preserve ESI and ordered the defendant “to serve Plaintiffs with full and adequate responses” to disputed requests for production “utilizing Plaintiffs’ requested search terms” and also ordered the defendant “to implement a litigation hold on the email accounts of any designer, engineer, customer service representative, or other employee who may possess any responsive non-privileged email. Said litigation hold will remain in place at least until the close of discovery.”

So, what do you think?  Should parties be sanctioned for failing to implement a litigation hold?  Please share any comments you might have or if you’d like to know more about a particular topic.

Just a reminder that today is our webinar titled Faster, Cheaper, Better: How Automation is Revolutionizing eDiscovery hosted by the Organization of Legal Professionals (OLP)!  Click here for more information or click here to register! Hope you can make it!

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

Live Webinar Tomorrow! How Automation is Revolutionizing eDiscovery: eDiscovery Trends

I’ve spoken a number of times about how automation is revolutionizing eDiscovery over the past few months, but tomorrow, you get an opportunity to see eDiscovery automation in action!

Tomorrow, Rob Robinson, legal technologist and author of the Complex Discovery blog, and I will be conducting a special webinar titled Faster, Cheaper, Better: How Automation is Revolutionizing eDiscovery.  This 60-minute presentation and discussion hosted by the Organization of Legal Professionals (OLP) is designed to inform and educate attendees on topics such as:

  • How eDiscovery Technologies Have Evolved Over the Years
  • How to Compare Technology Providers in the eDiscovery Market
  • What You Need to Know about Today’s eDiscovery Automation Technologies

Our presentation will provide an overview of the evolution of electronic discovery technologies and we will also share with ways that you can consider and compare technology offerings from the large ecosystem of providers supporting litigation, investigations, and audits. Our webinar will also include an overview of the attributes of fourth generation eDiscovery automation technology as well as a short demonstration on an eDiscovery automation platform.

Key questions we plan to answer during the presentation include:

  • How do I categorize and compare the different types of technologies and providers in the field of eDiscovery?
  • What is eDiscovery automation and what eDiscovery tasks can be automated?
  • How is eDiscovery automation being used in litigation, investigations, and audits?

It’s not too late to register for tomorrow’s webinar!  Here is the link to register.  Hope you can make it!  We will do our best to make it educational!

So, what do you think?  Do you think that automation is revolutionizing eDiscovery?  Whether you do or not, feel free to join us tomorrow!  And, 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Sedona Conference Has Finalized its Cross-Border Discovery Guide: eDiscovery Best Practices

Nearly nine months after releasing a new publication for public comment to provide guidance for the cross-border data transfer and discovery challenges that many organizations and in-house counsel regularly confront, The Sedona Conference® Working Group 6 on International Electronic Information Management, Discovery and Disclosure (WG6) has released its final version of that guide.

WG6 – the Working Group responsible for The Sedona Conference International Principles on Discovery, Disclosure and Data Protection (“International Litigation Principles”), has released the final version of the new guide titled Practical In-House Approaches for Cross-Border Discovery and Data Protection (“Practical Approaches”).  The original plan was to open the guide for public comment for a 3 month period through December 15, 2015 and then publish the “final” version early this year.

Of course, a lot has happened since then.

In early October, the Court of Justice of the European Union (‘CJEU’) ruled that the safe harbor pact enabling transatlantic data transfers between the U.S. and European Union should be struck down, agreeing with its top legal adviser in finding that the deal fails to provide an adequate level of protection for EU citizens’ data.

Then, in early February, an important new framework, intended to protect the fundamental rights of Europeans where their data is transferred to the United States and ensure legal certainty for businesses, was agreed upon – the EU-US Privacy Shield.  Within the same month, the European Commission released details on that new trans-Atlantic data transfer arrangement.

Interestingly enough, I find no mention of the safe harbor pact having been struck down and only two brief references to privacy shield certification within the final publication.  Hmmm.

The 50 page final guide (which includes extensive appendices) includes the following sections:

  • In-House Perspectives on Discovery and Data Protection: Describes the differing notions of privacy and discovery that exist around the world today;
  • The Sedona Conference International Principles on Discovery, Disclosure & Data Protection: Recap of the six international principles originally introduced in the International Litigation Principles Guide;
  • Practice Points for Conducting Cross-Border Discovery in View of Data Protection and Data Privacy Regulations: Eight detailed practice points, each that provide a hypothetical situation, for addressing everything from the need to proceed deliberately in countries with comprehensive Data Protection Laws to releasing legal holds and return or dispose of data promptly upon termination of a matter;
  • Practical Approaches Appendices: The Sedona Conference In-House Tool Kit for Data Protection and Cross-Border Discovery: A handful of useful documents that include an 20 page eDiscovery and Data Protection Model Guideline (which includes answers to FAQs), a Template Cross-Border Discovery Management Form for In-House eDiscovery Teams, a one page Talking Points Infographic for Internal Business Clients and Employees and an Exemplar Heat Map of Data Protection and Data Privacy Regulations.

The PDF guide can be downloaded here.  As always, it’s free!

In its email announcing the final Practical Applications guide, The Sedona Conference also stated that a WG6 drafting team “has been working on a complementary publication, International Principles for Addressing Data Protection in Cross-Border Government & Internal Investigations: Principles, Commentary & Best Practices”, which “will be posted on the Sedona Conference web site for public comment in mid-June”.  So, we have another guide to look forward to soon!

So, what do you think?  Does your organization struggle with cross-border discovery?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Virginia Politician’s Screen Grab Shows Porn Sites in Browser, He Gives ‘Testy’ Response: eDiscovery Trends

At least once a year, I like to cover a “social media gone wrong” story to remind us how careful we all need to be when communicating via social media.  This latest one illustrates that point quite well.

According to Gawker (Close Your Porn Tabs Before Posting Screenshots to Your Congressional Campaign Page, written by Ashley Feinberg) and numerous other sources, Virginia politician Mike Webb is running for Congressman in Virginia’s 8th District. On his Facebook page, he recently posted about Curzon Staffing Agency and how his difficulties in pursuing a job related to his decision to run for office.  He even posted a picture of a Yahoo search he “screen captured” regarding the staffing agency to his “Mike Webb for Congress” Facebook account.

Only one problem – he forgot to close his porn tabs first.

Right there, plain as day, are two tabs, one for “IVONE SEXY AMATEUR” and another partially displayed title – “LAYLA RIVERA TIGHT BO” (which Gawker has determined is a film called “LAYLA RIVERA TIGHT BOOTY”, after a little research).  I’ll take their word for it.

The post was on his page for over six hours before finally being taken down.  Webb later posted a lengthy follow-up post that attempted to explain the extraneous tabs on the previous post that began this way:

“Curious by nature, I wanted to test the suggestion that somehow, lurking out in the pornographic world there is some evil operator waiting for the one in a gazillion chance that a candidate for federal office would go to that particular website and thereby be infected with a virus that would cause his or her FEC data file to crash the FECfile application each time that it was loaded on the day of the filing deadline, as well as impact other critical campaign systems.”

I think we can all agree he is curious by nature.

Let’s face it, whether you’re the former social media manager of an NBA team, an NFL running back or the daughter of a laid off school administrator who tells the world on Facebook to “SUCK IT” after her father wins an $80,000 discrimination settlement, voiding the confidentiality agreement associated with the settlement (and, therefore, the settlement itself), it pays to think before you hit send.  Just ask Anthony Weiner.  Hey, at least he made it to Congress before the gaffe that undid his career… :o)

So, what do you think?  Do you know any good “social media fail” stories?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.