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Electronic Discovery

Spring has Sprung! Don’t Plant – Build – a (Decision) Tree: eDiscovery Best Practices

Having recently needed to walk a client through a decision process to determine how to proceed to index and search a huge volume of data, it seems timely to revisit this topic.

When a new case is filed, there are several important decisions that the lead attorney has to make.  Those decisions that are made early in the life cycle of a case can significantly affect how discovery is managed and how costly the discovery process can be for that case.  Decision trees enable attorneys to work through the decision process up front to help them make sound, logical decisions which can lead to more efficient management of the discovery process.

What is a Decision Tree?

A decision tree is a decision support tool that uses a tree-like graph or model of decisions and their possible consequences.  It is essentially a flowchart in which each internal node represents a test on an attribute, each branch represents outcome of that test and each leaf node represents the decision taken after computing all attributes.

If you have ever prepared an analysis at the outset of a case to estimate the probability of winning the case and determining whether to litigate or attempt to settle, you may have already prepared some sort of decision tree to make those decisions.  You probably looked at the probability of winning, probabilities of different award amounts, extrapolated the costs for litigating against the potential award amounts and used that to decide how to proceed.  The graphic above provides an example of what a decision tree, drawn as a flowchart, might look like to represent that process.

Uses of Decision Trees in Discovery

Decision trees identify the available alternatives to tackle a particular business problem and can help identify the conditions conducive to each alternative.  Issues in discovery for which a decision tree might be warranted could include:

  • Decide whether to outsource litigation support and discovery activities or keep them in-house;
  • Select an appropriate discovery solution to meet your organization’s needs within its budget;
  • Decide when to implement a litigation hold and determine how to comply with your organization’s ongoing duty to preserve data;
  • Determine how to manage collection procedures in discovery that identify the appropriate custodians for each type of case;
  • Decide whether to perform responsiveness and privilege review of native files or convert to an image format such as TIFF or PDF to support those review processes;
  • Determine whether to agree to produce native files or converted TIFF or PDF images to opposing counsel.

While they promote efficiency during the discovery process by promoting up front planning and walking through the logic of the decision making process, decision trees also reduce mistakes in the process by making the process more predictable and repeatable, promoting consistency in handling cases.  Once you have the decision process documented via a decision tree (and underlying assumptions don’t change), the plan of action will remain consistent.  If assumptions do change over time, your decision tree can evolve just like a real tree – adding or removing “branches” as needed to reflect the current decision making process.

So, what do you think?  Does your organization use decision trees in your discovery process?   Please share any comments you might have or if you’d like to know more about a particular topic.

Graphic source: Wikipedia.

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.

Court Denies Request for Cost Reimbursement for Hosted eDiscovery Database: eDiscovery Case Law

In Associated Electric & Gas Insurance Services, et. al. v. BendTec, Inc., No. 14-1602 (D. Minn., Feb. 24, 2016), Minnesota District Judge Michael J. Davis found that the decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp. to deny certain eDiscovery costs to be persuasive and ruled that “the costs of creating and maintaining an electronic platform for e-discovery are not recoverable under § 1920(4)”, denying the prevailing defendant’s request for reimbursement of over $123,000 in costs to maintain their ESI database.

Case Background

The defendant asserted that the plaintiffs produced approximately 19 gigabytes of data from a prior related lawsuit and it retained eDiscovery vendors to create and maintain an electronic platform for these documents (at a cost of $90 per gigabyte per month), so they could be processed and hosted in a viewable format.  The defendant eventually added its additional 192 gigabytes of data in preparation for production to the plaintiffs, which was hosted at the same $90 per gigabyte per month rate.

After the court entered judgment in favor of the defendant in June 2015, the defendant submitted its bill of costs to the Clerk of Court in July 2015 and the plaintiffs filed their objection to the bill of costs in August 2015.  The Clerk of Court entered a Cost Judgment on October 15, 2015 denying the taxation of costs by the defendant on the basis that fees for electronic discovery are not taxable by the Clerk. The defendant subsequently filed a motion for review of cost judgment, seeking to recover $126,970.80 in costs incurred by creating and maintaining an electronic database to hold documents produced by the plaintiffs and collecting and securing its own documents.  Following an objection from the plaintiffs, the defendant reduced the requested amount to $123,260.80.

Judge’s Ruling

Noting that “a number of courts that have addressed whether costs associated with e-discovery are recoverable under § 1092 have found that such costs are recoverable only to the extent they qualify as exemplification fees or the costs of making copies”, Judge Davis cited Race Tires America, Inc. v. Hoosier Racing Tire Corp., indicating that “the district court awarded the prevailing party the costs for e-discovery on the basis that it ‘appeared to be the electronic equivalent of exemplification and copying.’”  However, Judge Davis indicated that, on appeal, “the Third Circuit held that where e-discovery did not produce illustrative evidence or the authentication of public records, the costs for such discovery did not qualify as exemplification fees under § 1920(4) and is not recoverable” (we covered both rulings here and here).  Judge Davis specifically noted that “[a]s to costs associated with the collection and preservation of electronically stored information (“ESI”), processing and indexing ESI, and keyword searching of ESI for responsive and privileged documents, the court held that such costs are not recoverable under §1920(4).”

Indicating that other courts had found the Race Tires decision persuasive, Judge Davis stated that he “also finds the Race Tire decision persuasive and holds that the costs of creating and maintaining an electronic platform for e-discovery are not recoverable under § 1920(4)” and denied the defendant’s motion for recovery of those costs.

So, what do you think?  Is § 1920(4) still timely for consideration of cost reimbursement to prevailing parties?  Or should it be revisited and updated to reflect the current technological environment?  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.

No Fooling! The ACEDS Conference is Later this Month!: eDiscovery Trends

This is not an April Fool’s Joke!  Just when New York City thought it was safe from eDiscovery professionals – we’re all coming back for the ACEDS conference!  And, eDiscovery Daily and CloudNine will be a part of the show!

The conference is being held this year on Tuesday and Wednesday April 19 and 20, with pre-conference seminars being held the previous day on Monday, the 18th.  The conference will be held at the Grand Hyatt New York (located at 109 East 42nd Street at Grand Central Terminal).

This year’s panel topics include eDiscovery career challenges, the new rule changes, EDRM, information governance, predictive coding, data breach mitigation, and more.  From the opening keynote presentation on Tuesday by David Shonka, Acting General Counsel for the Federal Trade Commission (FTC), who will discuss the FTC’s Future Forward Stewardship of Privacy and Security, the conference promises to cover numerous relevant and timely topics for the eDiscovery professional.  And, with a collection of over 30 eDiscovery expert speakers that includes Craig Ball, George Socha, Tom O’Connor, Rob Robinson and some guy named Doug Austin (don’t be dissuaded from attending!) along with noted judges like Hon. James C. Francis IV (New York), Hon. Matthew Sciarrino, Jr. (New York) and Hon. Xavier Rodriguez (Texas), attendees will learn a lot.

Speaking of Craig, he will receive an ACEDS lifetime achievement award at the ACEDS Conference Awards Luncheon on Wednesday, April 20 along with Allison Brecher of Marsh and McLennan, Sheila Grela of Kennedy and Souza and Kim Taylor of Ipro.  Congratulations to all of the well-deserving award winners!

I will be covering the conference for eDiscovery Daily and will provide info about the sessions before each day, so that attendees will know what’s available.  And, CloudNine will be one of the exhibitors at the show.  If you’re there, come by our booth and say hi!

Also, on Monday, there are several pre-conference seminars that you can attend (regardless of whether you’re attending the overall show or not), including one for CEDS exam preparation and one about cyber security for legal professionals.

The third seminar on Monday is the Law Student Blogger/Social Invitational seminar, which is designed to bring together global blogging and social participants from the eDiscovery and Legal Technology community with law students forward thinking enough to create and share their knowledge (or consider doing so) via online media while still in school.  You’ll get to learn from experienced bloggers like Ari Kaplan, Rob Robinson, Robin Thompson and me and we get to learn from you as well!  We’d love to talk about blogging with you!

Not to be forgotten, EDRM is having its Spring Workshop on that Monday at the same venue in conjunction with the ACEDS conference as well, so if you’re an EDRM member, you can get a 25% discount for attending both.

To register for the conference, click here.  Prices vary, depending on a variety of factors, such as whether you’re an ACEDS member, employee of a government or non-profit organization, or student and whether you’re attending the entire conference or one of the pre-conference seminars.

So, what do you think?  Are you attending the ACEDS conference later this month?  If not, why not?  Please share any comments you might have with us or let us know 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.

If Google and Oracle are Going to Mine for Jurors’ Social Media Info, They Have to Inform the Court: eDiscovery Trends

When the big guys sue each other, the cases last forever.  We’ve been covering developments in the Apple v. Samsung case since July 2012, and that case is still going on.  Another case that we’ve covered a long time ago (way back in November 2011) is Oracle Corp. v. Google Inc. and that case is still going on too.  In that case, with a trial approaching, the judge has told lawyers to disclose Internet and social media research about jurors to the court or agree not to conduct it.

According to The Wall Street Journal (Google and Oracle Must Disclose Mining of Jurors’ Social Media, written by Jacob Gershman), U.S. District Judge William Alsup’s order urges both sides to respect the privacy of jurors.  He opened the order in this manner:

“Trial judges have such respect for juries – reverential respect would not be too strong to say – that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.”

As the order notes, apparently, both sides requested that the Court require the jury pool to complete a two-page jury questionnaire.  Then, one side asked for “a full extra day to digest the answers, and the other side wanted two full extra days, all before beginning voir dire.”  Judge Alsup eventually realized that they wanted that time to “scrub Facebook, Twitter, LinkedIn, and other Internet sites to extract personal data” and when asked about it, “counsel admitted this.”

Using the example of a juror’s favorite book being To Kill a Mockingbird and counsel constructing a copyright jury argument based on an analogy to that work and to play upon the recent death of Harper Lee, Judge Alsup noted that one of the dangers of mining juror social media use is that lawyers will use the information to make “improper personal appeals.”  Opting against a total research ban, he offered this compromise:

“[T]he Court calls upon them to voluntarily consent to a ban against Internet research on the [jury pool] or our jury until the trial is over… In the absence of complete agreement on a ban, the following procedure will be used. At the outset of jury selection, each side shall inform the venire of the specific extent to which it (including jury consultants, clients, and other agents) will use Internet searches to investigate and to monitor jurors, including specifically searches on Facebook, LinkedIn, Twitter, and so on, including the extent to which they will log onto their own social media accounts to conduct searches and the extent to which they will perform ongoing searches while the trial is underway. Counsel shall not explain away their searches on the ground that the other side will do it, so they have to do it too.”

Apparently, however, both parties would not agree to ban the research.  As Judge Alsup noted in his order, “Google is willing to accept an outright ban on Internet research about the venire and our jury, provided the ban applies equally to both sides. Oracle, however, will not.”  Judge Alsup also noted that “[o]n numerous occasions, Oracle has supplied confusing answers to the Court’s inquiries about its plan”.

Judge Alsup instructed both parties to “inform the Court By MARCH 31 AT NOON, whether they will consent to a ban against Internet research on the venire or the empaneled jury until the trial is over.”  That’s today, so we’ll see what happens.

So, what do you think?  Should litigants be allowed to mine social media data of prospective jurors?  Please share any comments you might have with us or let us know 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 are Some Questions to Ask When Selecting an eDiscovery Vendor: eDiscovery Best Practices

Let’s face it, there are a lot of eDiscovery vendors out there – like CloudNine (shameless plug warning!).  But, how do you find out which vendor is right for you?  Ask a lot of questions, of course!  Here is an article that provides several good ones to ask.

This article in the Florida Bar Practice Resource Institute (PRI) Blog ( Questions You Should Ask When Selecting An E-Discovery Vendor , written by David R. Hazouri, Esq.) covers questions that 1) are aimed at getting a sense for the vendor’s market position, business philosophy and long term stability, 2) attempt to drill down on the technical components of the vendor’s operations, and 3) seek to probe how the vendor proposes to handle your matter as you have generically described it.  Let’s take a look at each section of questions more closely.

Market Position, Business Philosophy and Long Term Stability

Several good questions here, ranging from some obvious ones (How long has the company been working in e-discovery?) to not-so-obvious (What is the vendor’s philosophy/business practices with respect to technology: have they developed solutions in-house or are they tech-agnostic?).  Here are a couple in particular worth noting:

  • How does the vendor distinguish itself from its competitors and who does the vendor think it compete with? Obvious questions, but I’m amazed how many prospective clients don’t ask us those questions.  If the eDiscovery vendor can’t concisely identify three to five points of differentiation from its competitors, how are you really going to know that they’re the right vendor for you?
  • What is the vendor’s philosophy with respect to management and personnel? The author goes on to ask several questions, such as “are the founders still present” and “are there any experienced attorneys in key positions”.  In addition to his questions, I would want to know average tenure at the company for employees in general and number of years of experience in litigation support and eDiscovery – you want a vendor that isn’t experiencing a lot of turnover with key personnel that have seen a little bit of everything in the industry.

Technical Components of the Vendor’s Operations

Here are a couple of notable questions in this section:

  • What does the vendor do to maintain the security and integrity of client data? In addition to what the author covers, I would want to know about the vendor’s policies regarding chain of custody and, if they are a hosting provider, more information about where your data is stored, including the list of security mechanisms the vendor provides and whether the data is stored in some sort of protected data center or in the public cloud.  With one, you know where your data is located, in the other, you may not.
  • With respect to review platform technology in particular, are there any compatibility issues between the vendor’s processes and either your firm’s platform or any popular platform that the opposing party may be using? The more software that has to be installed, the more potential issues may occur, so browser and platform independence is a plus when you want a smooth implementation.

Handling of Your Matter

This section gets into the breadth and scalability of services provided by the vendor and has the most questions.  The author covers services ranging from custodian interviews to forensic data collection to Early Case Assessment to logical document determination for scanned files without document breaks, as well as hosting pricing and production capabilities.  Very often, you may have a need for services that you didn’t anticipate up front, so it’s important to get a thorough understanding of how the vendor provides those additional services in case you need them.  And, it’s important that their pricing structure is straightforward so that you can predict your eDiscovery costs with reasonable accuracy up front.

I love question list articles like this because each one usually has a little bit different take and identifies at least a couple of unique questions to help select the right provider.  As I see other articles and blog posts out there with good questions for eDiscovery providers, I’ll try to share them as well.

So, what do you think?  Do you have any other questions that you ask to select an eDiscovery provider?  Please share any comments you might have with us or let us know 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.

Breaking News: The BIG Battle between Apple and the FBI is Over – For Now: eDiscovery Trends

Last week, we reported that the FBI said that it might no longer need Apple’s assistance in opening an iPhone used by a gunman in the San Bernardino, Calif., rampage last year.  Looks like that was the case.

According to CNN Money (FBI says it has cracked terrorist’s iPhone without Apple’s help, written by Jackie Wattles and Laurie Segall), the Department of Justice says the FBI has accessed the iPhone used by one of the gunmen in the San Bernardino terrorist shooting, with the help of an unnamed third party.  Saying that it has successfully retrieved the data from the phone, the Justice Department is asking the court to vacate its order from last month for Apple’s assistance.

“The FBI has now successfully retrieved the data stored on the San Bernardino terrorist’s iPhone and therefore no longer requires the assistance from Apple required by this Court Order,” DOJ spokeswoman Melanie Newman said in a statement.

Government officials did not go into detail about what was found on the phone.

The two sides were due in court last week, but the judge granted a last minute request from the DOJ to postpone the hearing, saying an unidentified “outside party” came to the FBI with an alternative method for hacking into the phone.  On Monday, the DOJ said the method only works on this particular phone, which is an iPhone 5C running a version of iOS 9 software.

A law enforcement official, speaking to reporters on condition of anonymity, would not reveal how it pulled off this hack. He would not name the “third party” that helped the FBI. And he refused to say whether the FBI will disclose this hacking method to Apple so the company can protect future phones from being hacked this way.  “We can’t comment on the possibility of future disclosures at this point,” the law enforcement official said.

Last month, a federal judge ordered Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters, a court order that Apple has fought, accusing the federal government of an “overreach” that could potentially breach the privacy of millions of customers.  That same day, Apple CEO Tim Cook published an open letter, pledging to fight the judge’s ruling that it should give FBI investigators access to encrypted data on the device.  And, the two sides have battled over the issue in court over the past month.

So, who is this “outside party”?  Was Steve Jobs resurrected over the weekend?  It was Easter, after all.  :o)  Regardless, it appears that the dispute is over – at least until the next time that the DOJ and the FBI need to hack into an Apple device.

So, what do you think?  Do you think we will see more disputes like this in the future?  Please share any comments you might have with us or let us know 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 Judge in the Most Famous eDiscovery Case is Retiring: eDiscovery Trends

If you follow eDiscovery, you probably have heard of the Zubulake case, which is probably the most famous case in eDiscovery.  The judge from that case — Shira A. Scheindlin of the U.S. District Court for the Southern District of New York – is retiring effective April 29.

In a letter announcing her retirement last Wednesday, Scheindlin, 69, said she will join a “large” New York City law firm, but plans to spend most of her time working on alternative dispute resolution (ADR) matters. In the letter Judge Scheindlin stated the following:

“After 21.5 years of service on the district court, I have decided to leave the bench as of April 29, 2016. These have been the best years of my life in which I have had the pleasure of working with wonderful colleagues and the opportunity to work on many important and interesting cases. While I will no doubt miss both the work and my colleagues, I am looking forward to taking on new challenges in the private sector. I plan to spend the bulk of my time on ADR matters including work as an arbitrator and mediator and in other neutral capacities – with the hope of doing a fair amount of public interest work as well as working on commercial matters.  I will also become of counsel to a large New York City law firm where I anticipate assisting in client and pro bono matters, teaching and mentoring associates, and engaging in public speaking and writing.  I thank you all for your friendship and support over the past years and hope to work together again in other capacities.”

In the Zubulake v. UBS Warburg case, Scheindlin issued key rulings that included classification of accessible vs. inacessible data and a new seven factor balance test for cost-shifting of discovery costs, among other precedents.  Another groundbreaking case from an eDiscovery standpoint was Pension Committee of the Montreal Pension Plan v. Banc of America Securities, LLC, where, in her ruling where she issued sanctions against the plaintiffs, Scheindlin defined negligence, gross negligence, and willfulness from an eDiscovery standpoint.

Along with Daniel Capra, Scheindlin also published a book in 2009, The Sedona Conference’s Electronic Discovery and Digital Evidence in a Nutshell, which addresses several issues related to the use of electronic information in litigation.

In addition to her noteworthy eDiscovery rulings and teachings, Scheindlin also made impact in other areas, including ordering the NYPD to reform its stop-and-frisk policing policy in 2013 and, earlier this year, ordering the SEC to return $21.5 million from an insider trading settlement paid by Level Global Investors Ltd. and another $9 million to a hedge fund in the same case.  She also approved a class-action antitrust settlement between sports fans and Major League Baseball over pay-TV game broadcasts.

As noted above, Scheindlin told colleagues in her letter that she will join the firm to assist in client and pro bono matters, and to mentor and teach associates.  Lucky associates!

So, what do you think?  Will her legacy influence the decisions of other judges going forward?  Please share any comments you might have with us or let us know 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.

451 Research Highlights CloudNine with Impact Report

Extract from 451 Research report by Sean Doherty: CloudNine SaaS supports tasks in the Electronic Discovery Reference Model (EDRM) – from collection to review and production. It offers do-it-yourself software for small to midsize organizations and law firms, with additional layers of professional services to meet the needs of large enterprises and AM Law 250 firms.

Source: Impact Report – CloudNine SaaS Parts from Public Clouds, Offers eDiscovery Services From Owned Assets

For the complete report (subscription required), click here.

Plaintiff Granted Documents Withheld Due to Privilege, But Denied Expanded Search of Emails: eDiscovery Case Law

In Moore v. Lowe’s Home Ctrs., LLC, No. 14-1459 RJB (W.D.Wash. Feb. 19, 2016), Washington District Judge Robert J. Bryan ruled in favor of the plaintiff that documents and communications dated before the defendant anticipated litigation were not privileged work product and should be produced, but he ruled against the plaintiff in her request have the defendant perform additional searches on email to identify additional relevant documents.

Case Background

In this discrimination case, the plaintiff filed a Motion to Compel Production of Improperly Withheld Documents and Responses to Discovery Regarding Destruction of Plaintiff’s and Other Witnesses’ Email.  In her Motion to Compel, the plaintiff requested (among other things) for the Court to order the production of documents withheld on the basis of privilege and work product and compel additional searches for, and production of, emails responsive to the plaintiff’s discovery requests.

With regard to the documents withheld on the basis of privilege and work product, the defendant claimed that it properly withheld communications between non-attorneys because privilege extends to corporate employees for confidential communications with corporate attorneys and for confidential communications relating to legal advice from those attorneys.

As for the additional searches requested by the plaintiff (due in part to the emails in the plaintiff’s possession that were not uncovered in the defendant’s search), the plaintiff asserted that the defendant should demonstrate that it performed a diligent search, that the defendant should conduct additional searches using terms requested by the plaintiff and that these new searches be conducted without including Plaintiff’s first or last name, on the email accounts of each witness.

In response, the defendant argued they had reviewed 21,000 emails from 17 custodians at a cost of $48,074, that the relevant emails from 2012 were likely deleted and that a search using the 88 newly requested search terms (including annoy*, bull, click*, dad, date*, hand, rack, rod, box) in conjunction with removing Plaintiff’s name from the search would result in hundreds of thousands of irrelevant emails.

Judge’s Ruling

With regard to the documents withheld on the basis of privilege and work product, Judge Bryan ruled that “Defendant states that it anticipated litigation as of April 25, 2013…Therefore, documents created prior to that date are not work product. Similarly, investigative communications made before April 25, 2013, in relation to Plaintiff’s complaints and termination fall outside the realm of legal advice and are thus not privileged. Investigation into employee complaints or misconduct serves a predominantly HR function, especially if the investigation takes place before litigation is anticipated. Defendant has not provided sufficient information to distinguish its activities as legal in nature.”  As a result, the defendant was ordered to “produce documents and communications dated before April 25, 2013, relating to investigations into Plaintiff’s complaints and termination.”

With regard to the additional searches requested by the plaintiff, Judge Bryan stated:

“Plaintiff’s request for email searches is overly broad and not proportional to the case…While the additional search terms could possibly yield some relevant results, Plaintiff has not provided specifics about what Plaintiff reasonably expects such a search to show, and Plaintiff has not shown that this information could not be found through other means. For example, Plaintiff has not shown that she would be unable to uncover the same information by asking additional questions of witnesses already scheduled to be deposed. As to this discovery issue, Plaintiff’s motion should be denied.”

So, what do you think?  Should the parties have been ordered to meet and confer regarding the search terms?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will be off tomorrow for Good Friday and will resume with a new post on Monday.

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.

FBI May Be Able to Unlock Terrorist’s iPhone without Apple’s Help: eDiscovery Trends

In court on Monday, the FBI said that it might no longer need Apple’s assistance in opening an iPhone used by a gunman in the San Bernardino, Calif., rampage last year.

According to The New York Times (U.S. Says It May Not Need Apple’s Help to Unlock iPhone, written by Katie Benner and Matt Apuzzo), in its court filing, the government said an outside party had demonstrated a way for the FBI to possibly unlock the phone used by the gunman, Syed Rizwan Farook. The hearing in the contentious case — Apple has loudly opposed opening the iPhone, citing privacy concerns and igniting a heated debate — was originally set for Tuesday.

In its filing, the Justice Department, while noting that the method must be tested, stated that if it works “it should eliminate the need for the assistance from Apple”. The Justice Department added that it would file a status report by April 5 on its progress.  Judge Sheri N. Pym, the federal magistrate judge in the United States District Court for the Central District of California who was set to hold the hearing, agreed to grant the Justice Department’s motion to postpone the hearing.

As the article notes, “The emergence of a potential third-party method to open the iPhone was a surprise, as the government said more than a dozen times in court filings that it could open the phone only with Apple’s help. The FBI director, James B. Comey Jr., also reiterated that point several times during a hearing before Congress on March 1.”

Last month, a federal judge ordered Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters, a court order that Apple has fought, accusing the federal government of an “overreach” that could potentially breach the privacy of millions of customers.  That same day, Apple CEO Tim Cook published an open letter, pledging to fight the judge’s ruling that it should give FBI investigators access to encrypted data on the device.  And, the two sides have battled over the issue in court over the past month.

In the meantime, everyone from Google Chief Executive Sundar Pichai to Donald Trump has weighed in on whether Apple should help unlock the iPhone for the investigation.  In addition, Apple claimed that had the passcode to Syed Farook’s iPhone not been reset hours after the shooting (at the consent of the FBI), the company would have been able to initiate a backup of the phone’s data to its associated iCloud account in order to retrieve its contents.  And, PCWorld reported that if San Bernardino County had been using a Mobile Device Management (MDM) service on its employees’ devices, they “would have been able to clear the device’s passcode in a matter of seconds” and the whole issue would have been moot (at least this time).

So, what do you think?  Who is this outside party and will they be able to eliminate the dispute between Apple and the FBI or only delay it?  Please share any comments you might have with us or let us know 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.