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Electronic Discovery

Europe and US Agree to Replace Safe Harbor with a Shield: eDiscovery Trends

While many of us were at LegalTech® New York 2016 last week, an important new framework for transatlantic data flows was agreed upon – the EU-US Privacy Shield.

As announced last Tuesday, the new framework is intended to protect the fundamental rights of Europeans where their data is transferred to the United States and ensure legal certainty for businesses.

According to the European Commission, the EU-US Privacy Shield reflects the requirements set out by the European Court of Justice (ECJ) in its ruling in the Schrems case last October 2015 (covered by us here), which declared the old Safe Harbor framework invalid. The new arrangement will provide stronger obligations on companies in the U.S. to protect the personal data of Europeans and stronger monitoring and enforcement by the U.S. Department of Commerce and Federal Trade Commission (FTC), including through increased cooperation with European Data Protection Authorities. The new arrangement includes commitments by the U.S. that possibilities under U.S. law for public authorities to access personal data transferred under the new arrangement will be subject to clear conditions, limitations and oversight, preventing generalized access. Europeans will have the possibility to raise any inquiry or complaint in this context with a dedicated new Ombudsperson.

The new agreement, which has yet to be published (and is apparently still “some” weeks out, according to an article in TechCrunch) will include provisions for “strong obligations on companies handling Europeans’ personal data and robust enforcement”, “clear safeguards and transparency obligations on U.S. government access” and “effective protection of EU citizens’ rights with several redress possibilities”.  Next steps include preparation of a draft “adequacy decision” in the coming weeks, which could then be adopted by the College of Commissioners after obtaining the advice of the Article 29 Working Party and after consulting a committee composed of representatives of the Member States. In the meantime, the U.S. side will make the necessary preparations to put in place the new framework, monitoring mechanisms and new Ombudsman.

In the TechCrunch article, Schrems, whose legal action against Facebook ultimately brought down the original Safe Harbor, expressed skepticism the deal goes far enough to stand the test of another legal challenge at the ECJ, noting that the “Court has explicitly held, that any generalized access to such data violates the fundamental rights of EU citizens”.

So, what do you think?  Will the new “Privacy Shield” hold?  Or is it too soon to tell?  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.

Changes in Federal Rules Result in Reversal of Adverse Inference Sanction: eDiscovery Case Law

In Nuvasive, Inc. v. Madsen Med. Inc., No. 13cv2077 BTM(RBB) (S.D. Cal. Jan. 26, 2016), California Chief District Judge Barry Ted Moskowitz, considering new standards imposed under recently amended Federal Rule of Civil Procedure 37(e), granted the plaintiff’s motion for an order vacating the Court’s previous order granting (in part) the defendants’ Motion for Sanctions for Spoliation of Evidence.

Case Background

In a previous ruling (which we covered here), Judge Moskowitz granted the defendants’ motion for adverse inference sanctions for failure to preserve text messages from four custodial employees that were key to the case.  The plaintiff sought relief under Rule 60(b) based on an amendment to Federal Rule of Civil Procedure 37(e), which went into effect on December 1, 2015.

The defendants opposed the motion, arguing that it was untimely and also argued that it was neither “just” nor “practicable” to apply the new rule because: (1) the mere fact that trial was postponed to February 2016 due to the Court’s schedule should not have the effect of absolving the plaintiff of its discovery misconduct; (2) application of the amended rule would cause substantial prejudice to the defendant, which took discovery and filed its spoliation motion under the standard applicable at the time; and (3) there is no alternative sanction that would remedy the prejudice to the defendants caused by the plaintiff’s destruction of evidence.

Judge’s Ruling

In assessing the new Rule 37(e) language, Judge Moskowitz stated that “It is clear from the language of (e)(2) as well as the Committee Notes that the adverse inference instruction that the Court was going to give falls within the measures that are not permissible absent a finding of intent. The Committee Notes explain: ‘Subdivision (e)(2) applies to jury instructions that permit or require the jury to presume or infer that lost information was unfavorable to the party that lost it. Thus, it covers any instruction that directs or permits the jury to infer from the loss of information that it was in fact unfavorable to the party that lost it.’”

Continuing, Judge Moskowitz observed that “In its prior orders, the Court did not make any finding that NuVasive intentionally failed to preserve the text messages so that Defendants could not use them in this litigation. Instead, the Court found that NuVasive was at fault for not enforcing compliance with the litigation hold. The record does not support a finding of intentional spoliation by NuVasive. Therefore, under Rule 37(e), as amended, it would not be proper for the Court to give the adverse inference instruction.”

Judge Moskowitz rejected the defendants’argument that the motion was untimely, noting that the plaintiff brought its motion on December 10, 2015, just nine days after the new rule went into effect.  While acknowledging that “NuVasive has had a bit of good luck in that trial is scheduled for February, after the effective date of the new rule”, Judge Moskowitz indicated that he was “not convinced that there is any prejudice” to the defendant, noting that, “even under the standard applied by the Court in initially ruling upon Defendants’ motion for sanctions, intent was relevant”.

Judge Moskowitz did indicate he would allow both parties “to present evidence to the jury regarding the loss of electronically stored information and will instruct the jury that the jury may consider such evidence along with all other evidence in the case in making its decision.”

So, what do you think?  Should sanction orders be vacated because of the amendment to Rule 37(e)?  Will this create a wave of motions requesting that courts vacate similar orders in other cases?  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.

EDRM Participant Profile, Crystal O’Donnell: eDiscovery Trends

When EDRM announced eDiscovery Daily as an Education partner last March, EDRM agreed to publish our daily posts on the EDRM site and it has been great to publish our content via the leading standards organization for the eDiscovery market!  However, another part of our agreement was for eDiscovery Daily to provide exclusive content to EDRM, including articles sharing real-life examples of organizations using EDRM resources in their own eDiscovery workflows.  Our latest participant profile is available on the EDRM site and we’re looking for other organizations to share their EDRM experiences!

These profiles are designed to illustrate how participants and their organizations contribute to the success of EDRM as well as how those organizations use EDRM resources in their own businesses.

Our latest EDRM Participant Profile Interview is with Crystal O’Donnell. Crystal is Founder and President of Heuristica Discovery Counsel.  She has a diverse and relevant professional history, with extensive experience as litigation and e-discovery counsel having practiced with a leading litigation firm and the Ministry of the Attorney General (Ontario). Crystal has represented clients in a number of complex matters at all levels of the Ontario courts as well as in regulatory proceedings and investigations.

Crystal’s range of expertise includes legal, strategic and software aspects of e-discovery, which are critical components of all legal proceedings and evidence-based proceedings. She also has experience with cross-border and conflicts of laws issues which arise in multi-jurisdiction and multi-forum matters.  Her years of experience as litigation counsel give her a keen appreciation and understanding of clients’ needs and allows her to deliver defensible, proportionate and cost-effective legal advice and solutions.

Crystal is also currently the Vice-Chair of the Ontario E-Discovery Implementation Committee, (“EIC”); Chair of the EIC Precedents Subcommittee; and, a Steering Committee member of Working Group 7, of the Sedona Conference (Sedona Canada).

In my interview with Crystal, she discussed why Heuristica decided to join EDRM, how EDRM compares to the Sedona Conference and she discussed several ways in which the discovery process is handled differently in Canada (as compared to the USA).  Very interesting stuff!

The link to Crystal’s interview on the EDRM site is here.  I hope you will check it out.

If you are a participant of EDRM and would like to be profiled (or would like to recommend a current EDRM participant to be profiled), please contact George Socha (george@edrm.net), Tom Gelbmann (tom@edrm.net) or me (daustin@cloudnincloudnine.comm) to arrange a profile interview with me to be published on the EDRM site.  We would love for you to share your experiences with EDRM and its resources!

So, what do you think?  Are you an EDRM member and want your organization to be profiled?  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.

Thursday LTNY 2016 Sessions: eDiscovery Trends

As noted yesterday and Tuesday, LegalTech® New York 2016 (LTNY) is happening this week and eDiscovery Daily is here to report about the latest eDiscovery trends being discussed at the show.  This is the last day to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and over 174 exhibitors providing information on their products and services.

While at the show, we will (for the sixth year in a row!) be interviewing several industry thought leaders to see what they think are the significant trends for 2016 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 41 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

9:00 – 10:00 AM:

Keynote Panel Discussion – Private Network Servers, Deleted Emails & Texts and Other Controversies in the News

  • Investigations into the State Department’s emails, the Fort Lee lane closure controversy and Deflategate: What do we know, and what would eDiscovery experts have advised to avoid each of these issues?
  • What laws apply to public records on private networks?
  • How should we deal with shadow IT applications (the use of commercial services for corporate and government business), beyond just having a BYOD policy?
  • Are institutions losing control of their ability to find and access records?
  • Comingling business, personal and public records: Can the knot be untied? Where is the line separating personal data?

Speakers to include: Daniel J. Capra (Discussion Leader), Reed Professor of Law, Fordham Law School; Jason R. Baron, Information Governance and eDiscovery Group, Drinker Biddle & Reath LLP, Former Director of Litigation, National Archives and Records Administration; Edward B. MacMahon, Jr., Attorney, Edward B. MacMahon, Jr., PLC Hon. Shira A. Scheindlin, United States District Judge , United States District Court , Southern District of New York.

10:30 – 11:45 AM:

Civil Litigation: Unique Considerations of a Federal Civil Investigation and Impact of Revised FRCP

There are legal and strategic e-discovery challenges at each stage of an investigation.  The government stresses communication, expertise, and planning.  Understanding of the scope of claims, preservation issues, and search strategies can often set the tone for an entire case.  This panel will address how the new amendments to the Federal Rules of Civil Procedure will affect litigation with the federal government, how new technology is changing old discovery, and provide practical suggestions on how to engage the government if you become involved in a civil investigation.

Speakers to include: George Kiersted (Discussion Leader), President, Kiersted Systems; Christopher Belen, Senior Litigation Counsel for E-discovery , US Department of Justice-Civil Division; Robert L. Levy, Counsel – Civil Justice Reform and Law Technology, Exxon Mobil Corporation; Allison Stanton, Director of E-Discovery, FOIA and Records, US Department of Justice-Civil Division, Joshua Wood, Director, Office of Litigation Support, US Department of Justice-Civil Division.

What Happened to the US/EU Safe Harbor?  The Tension Between Privacy and Business Efficiency for Multinational Corporations

  • Overview of the CJEU’s Safe Harbor ruling and its impact on multi-national corporations
  • Common-sense, practical steps that can help an organization deal with the current ambiguity and to mitigate exposure of EU resident data housed in the US
  • What’s on the horizon – will there be a Safe Harbor 2.0? What will it look like?

Speakers to include: Robert D. Brownstone, Technology & eDiscovery Counsel and Chair, Electronic Information Management (EIM) Group, Fenwick & West LLP; Chris Dale, The e-Disclosure Information Project; Kenneth N. Rashbaum, Partner, Barton LLP; Amie Taal, Vice President of Digital Forensics and Investigations, Deutsche Bank; Richard Vestuto, Director – Deloitte Discovery, Deloitte Advisory.

Dancing with the Stars of eDiscovery: Case Studies in eDiscovery Powered by Analytics

eDiscovery practitioners have paired up with their software vendors to show their best litigation dance steps as they each present case studies in eDiscovery powered by analytics. See how clients saved millions of dollars and countless person-hours by putting analytics in motion with the grace and elegance of Fred Asaire and Ginger Rogers.

Hear firsthand how iControl ESI danced through 5.5 million documents partnered with Ipro Eclipse to reduce the corpus to a few thousand.  See how Paragon two-stepped a single 7 TB data set for two different cases using iCONECT Xera to save $1.5 million in review costs for the second case. Marvel at how McDermott Will & Emery tangoed with kCura’s Relativity to save millions in review fees during the Anheuser-Busch InBev merger investigation by the Department of Justice. And awe at Altep’s effortless legwork as Denton LLP reduced a 35k document set to less than 1% in less than 20 days, all with the sophisticated capabilities of advanced analytics.

Speakers to include: Ari Kaplan (Discussion Leader), Founder, Ari Kaplan Advisors; Iram Arras, Vice President, Product Strategy, iCONECT; Jacob Cross, Customer Success Workflow Consultant, kCura; Michelle Drucker, Litigation Paralegal, Dentons; Drew Lewis, Vice President of Innovation, General Counsel, Paragon; Hunter McMahon, JD, CIPT, Vice President of Legal & Consulting Services, Altep; Mike Schubert, Chief Operational Officer, Ipro; Alison Silverstein, Managing Director, McDermott Discovery; Mark G. Walker, Sr., eDiscovery Consultant, iControl ESI.

12:15 – 1:30 PM:

How E-Discovery is Different and How Social Media and Recent Decisions Affect the Landscape

The rules, risks, and responsibilities for Criminal investigations are different from E-Discovery in Civil Cases. Emerging trends in technology and in particular the impact of social media present challenges and opportunities.  This panel will address recent developments including the Second Circuit’s decision in Ganais. It will provide practical suggestions on how to engage the government if you become involved in an investigation, how to navigate the unique rules and e-discovery issues involved in criminal investigations, and why you need to be prepared.

Speakers to include: George Kiersted (Discussion Leader), President, Kiersted Systems; Curt Bohling, Assistant United States Attorney, Chief, Monetary Penalties Unit, United States Attorney’s Office for the Western District of Missouri; Tracy Greer, Senior Litigation Counsel for E-Discovery, US Department of Justice- Antitrust Division; John Haried, Assistant US Attorney, Colorado and Senior Litigation Counsel for Criminal eDiscovery, EOUSA, US Department of Justice; Kathleen Stimpson, Litigation Technology Manager, US Attorney’s  Office, District of Massachusetts.

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

  • How will the FRCP changes alter 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 litigation.
  • Navigating potential ethical challenges with regard to advice on data retention and disposition in light of the updated Rules.

Speakers to include: Robert D. Brownstone, Technology & eDiscovery Counsel and Chair, Electronic Information Management (EIM) Group, Fenwick & West LLP; Julie Colgan, CRM, IGP, Head of Information Governance Solutions, Nuix; John Isaza, Partner, Rimon PC, Jason Stearns, Director, Legal and Compliance Group, Blackrock.

Consumerization and eDiscovery: How Pandora, Netflix and Amazon are Changing eDiscovery Expectations through Analytics

Consumer applications such as Pandora music service, Netflix and Amazon have changed the way we expect information to be presented to us as consumers. We expect them to know what we’re looking for, anticipating our needs based on what we’ve liked in the past, powered by advanced analytics.

Litigation practitioners and corporate counsel should expect the same from their eDiscovery software – finding what they’re looking for without having to specifically ask for it by name.  Use predictive coding to find similar documents and tag them as responsive or privileged.  Come see real life examples of how sophisticated advanced analytics are used in eDiscovery much like they are with consumer applications used by hundreds of millions of people every day, to more intelligently and efficiently process massive amounts of data into manageable and cost-effective collections.

Speakers to include: Ari Kaplan (Discussion Leader), Founder, Ari Kaplan Advisors; Jeff Fehrman, Chief Strategy Officer, Mindseye; Jawahar Jaddu, Director, Product Management, Consilio; Collin Miller, Director of RiskcoveryServices, Altep.

2:00 – 3:00 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: Robert D. Brownstone, Technology & eDiscovery Counsel and Chair, Electronic Information Management (EIM) Group, Fenwick & West LLP; James Arnold, Managing Director, Forensic Services, KPMG LLP; Ari Kaplan, Founder, Ari Kaplan Advisors, Peter Miller, Senior Counsel, Crowell & Moring LLP, Chris Pogue, Senior Vice President, Cyber Threat Analysis , Nuix.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

So, what do you think?  Did you attend LTNY 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.

Wednesday LTNY 2016 Sessions: eDiscovery Trends

As noted yesterday, LegalTech® New York 2016 (LTNY) is happening this week and eDiscovery Daily is here to report about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and over 174 exhibitors providing information on their products and services.

While at the show, we will (for the sixth year in a row!)  be interviewing several industry thought leaders to see what they think are the significant trends for 2016 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 54 hits.  So, there is plenty to talk about!  If you get a chance, come check out the session 25 Ediscovery Warnings in 75 Minutes: Common Blunders that Befall Litigation Teams at 3:45pm today where several eDiscovery professionals (including me) will give you tips on eDiscovery issues to avoid!  Other sessions in the main conference tracks include:

10:30 – 11:45 AM:

Questions and Answers: Analytics for Investigations & Compliance

Investigating is about asking questions and finding answers—and analytics can hold the key. Communications mapping, phrase and entity extraction, conceptual groupings, and more are powerful vehicles to help you get where you need to go. Learn from experienced attorneys and data scientists how they’re successfully using a range of data analytics to expedite fact finding, inform decisions, and better support their clients. This session will present practical strategies and real life success stories that you can start replicating right away.

Speakers to include: Alexis Clark (Discussion Leader), Data Scientist, Recommind; Bennett Borden, Chief Data Scientist and Chair of the Information Governance & eDiscovery Group , Drinker Biddle & Reath LLP; Avi Gesser, Partner, Davis Polk and Wardwell; Alex Ponce de Leon, Discovery Counsel, Google.

Intelligent Cloud: Ensuring Governance, Risk, Compliance & e-Discovery in Cloud-Based Applications

Cloud-based applications have exploded over the last few years. These applications allow companies to reduce infrastructure costs, gain flexibility and access enhanced functionality. Without adequate oversight and governance though, companies face increased risks of unauthorized access, theft of IP, and discovery and compliance failures. This panel will take an in-depth look at the risks associated with cloud-based apps and the emerging approaches and technologies being used to mitigate these risks and improve functionality.

Speakers to include: John Loveland (Discussion Leader) , Managing Director, Huron Legal; Peter Baumann, CEO and Co-Founder, Active Navigation; Dean Gonsowski, Vice President, kCura; Mark Jenkins, Sr. Director, Strategic Alliances, Skyhigh Networks; Mike Silano, Lead Solution Architect, Box.

The Science of Predictive Coding: How Has TREC Changed Ediscovery and What Have We Learned From the 2015 TREC Total Recall Track?

Have you heard of TREC – the Text Retrieval Conference? Are you familiar with its research under TREC’s “Legal Track” and its successor, the “Total Recall Track”? Perhaps you are not exactly familiar with TREC’s mission and research activities? How does TREC relate to ediscovery and predictive coding?

This panel will be comprised of TREC veterans and predictive coding gurus. They will provide a summary of the history and purpose of the TREC program and dive deep into ediscovery lessons learned from participating in this scientific research program. Anyone who uses – or is thinking about using – predictive coding in their next ediscovery review project will benefit from learning more about TREC’s research.

Speakers to include: Emily Cobb (Discussion Leader), Associate, Ropes & Gray; Jason R. Baron, Information Governance and eDiscovery Group, Drinker Biddle & Reath LLP, Former Director of Litigation, National Archives and Records Administration; Ralph Losey, Shareholder, Jackson Lewis; Jim Sullivan, Senior Discovery Services Consultant, Kroll Ontrack.

12:30 – 1:30 PM:

Mitigating Risk with Information Governance and Insight – Open To All

In spite of stepped up efforts by most IT departments, organizations continue to face increased risk exposure from gaps in compliance, security and illegal behavior. Unfortunately much of this risk stems from what a company doesn’t know about their data both inside and outside their walls.

In this session, information governance experts will discuss:

  • The importance of gaining insight across your enterprise information
  • How this insight directly impacts your ability to achieve compliance, mitigate risk, and avoid costly penalties
  • The growing expectation of predictive analytics in governance
  • Perspectives on the right strategies, processes, and tools that can help you proactively take action with big data to reduce risk

Speakers to include: Matthew Levy (Discussion Leader), Vice President, eDiscovery, Hewlett Packard Enterprise; Wayne Matus, Managing Director, Global Head of eDiscovery, UBS AG; Robert D. Owen, Partner, Sutherland Asbill & Brennan; Hon. Andrew J. Peck, United States Magistrate Judge, United States District Court, Southern District of New York; Judy Selby, Partner and Co-leader, Information Governance Team, BakerHostetler.

2:00 – 3:15 PM:

Survey Results: How Legal Ops, Analytics, and the Cloud are Reinventing Corporate Legal

Legal operations leaders are driving an unprecedented focus on discovery processes, data security, and the efficiency of outside litigation teams. Ari Kaplan, Hal Marcus, and guest speakers will present findings from the benchmark 2015 Corporate Legal Operations Survey by Ari Kaplan Advisors, featuring insights into cloud readiness, investigations activity, discovery consolidation, performance metrics, and more. Come learn what legal operations leaders are doing (and not yet doing) to optimize security, visibility, and efficiency.

Speakers to include: Ari Kaplan (Discussion Leader), Founder, Ari Kaplan Advisors; Hal Marcus (Discussion Leader), Product Marketing Manager, Recommind; Brent Holmes, eDiscovery Program Director, Siemens Corp.; Alex Ponce de Leon, Discovery Counsel, Google; Dawn Radcliffe, Manager, Discovery & Legal Support, TransCanadaPipelines, Ltd; Rick Schoeneck, Director of Electronic Discovery, Accenture.

Aligning New Technology, Data Protection, and E-Discovery

To be successful, companies must leverage new technologies. However, those great new tools and gadgets often bring complicated risk management issues. How do you effectively meet e-discovery obligations in an evolving world that includes different forms of collaboration, cloud services, BYOD, system upgrades and migrations, and increased compliance requirements? What about the challenges of identifying and preserving data when new technologies are introduced and new sources and types of data are revealed? How far should you dig to find data? Have you had to play catch up to understand the e-discovery impact after rolling out something new? This panel will help you look at ways to help defend the corporation without causing unnecessary backlogs and balance the sometimes competing interests of progress and protection.

Speakers to include: Joanne Lane (Discussion Leader), Associate Director, Investigations & eDiscovery, Merck & Co., Inc.; Jennifer Hamilton, Global eDiscovery Counsel, Deere & Company; Sadie Khodorkovsky, Executive Director, Legal Discovery Management, JPMorgan Chase & Co.; Eric Lieber, Director of Legal Technology, Toyota Motor Sales, USA; Tracey Garland Vinson, Senior Counsel and Director of E-Discovery , Bayer Corporation.

Turning on the Lights in a Dark [Data] Room

Companies, business units and individuals are all amassing huge volumes of disparate data.  One way or another, we are paying for it or not recognizing the opportunity cost associated with all that data.  This is what has led to the term “dark data.” Some organizations are masterfully using dark data to build their business. Yet, others succumb to the costly pains of trudging through small percentages of data amongst their huge data stores in reaction to a legal event.

It’s time for the convergence of expertise and resources in information governance, data analytics, business intelligence, risk management and electronic discovery to build true information intelligence.  This interactive session will enable you to understand what dark data is, why it’s not the same for everyone, and how you can use it to your organization’s benefit without breaking the bank.

Speakers to include: Tom Barce (Discussion Leader), Director of Consulting Services, Kroll Ontrack; Vincent M. Catanzaro, Of Counsel, Shook, Hardy & Bacon LLP; James L. Michalowicz, Senior Manager – Legal Operations Business Performance, TE Connectivity; Clifford E. Nichols, Senior Counsel , Day Pitney.

Slashing E-Discovery Costs: Innovative Approaches and New Alternative Fee Arrangements

In today’s era of cost-cutting, many corporations have begun internalizing key functions that they used to outsource to law firms and service providers. In fact, in 2014 corporations reallocated approximately $1.1 billion from outside legal support to in-house operations to reduce costs. One main area that is ripe for reduction is e-discovery – the largest single litigation cost. This panel will showcase how law firms and service providers can dramatically reduce e-discovery costs and, at the same time, accelerate trial preparedness for their clients, without being forced to in-source this traditionally outsourced function. The session discusses how the “old way” of pricing e-discovery services (per-gigabyte pricing, hourly rates and unrealistic estimates) is being replaced by the “new normal”: a focus on total project cost, fixed fees and performance guarantees.

Speakers to include: Dave Deppe (Discussion Leader), President, UnitedLex; Brian E. Chebli, Vice President, Assistant General Counsel, Legal Discovery Management, JPMorgan Chase & Co.; Christine Hasiotis, Executive Counsel & Director, Legal Support Solutions, Electric Insurance Company; Anthony S. Lowe, Managing Attorney Litigation Operations, Associate General Counsel, Freddie Mac; Farrah Pepper, Executive Counsel – Discovery, General Electric Company; Greg Witczak, Vice President, Deutsche Bank.

3:45 – 5:00 PM:

The New Attorney Experience:  Understanding the Litigation Landscape in 2016 & Beyond

This will be a panel discussion moderated by LexisNexis Application Architect Mike Etgen that will briefly discuss the current state of affairs for litigation, but then quickly move into a discussion of what the Litigation Attorney’s experience will look like over the next 5 years. This session will include valuable market insight into what Attorneys want in their litigation technology and tools, and the impact of the user experience on use and adoption of those tools.  The panel of experts will share their real-world experience around workflow challenges and software adoption. The session will also discuss an array of solutions in the market and offer ways we intend to better support them.

Speakers to include: Michael Etgen (Discussion Leader), Senior User Experience Architect, LexisNexis; Ron Best, eDiscovery Counsel and Director of Legal Information Systems, Munger, Tolls & Olson; David Cowen, President and Managing Director, The Cowen Group; Scott Milner, Partner, Morgan Lewis.

25 Ediscovery Warnings in 75 Minutes: Common Blunders that Befall Litigation Teams

Educational and entertaining!  Join experienced ediscovery moderators in a fast-paced series of live stories from audience members, who will share examples from their own experiences of ediscovery situations gone wrong, explain how the issue was ultimately resolved and share their lessons learned.

From tips to save on monthly data hosting costs and avoid over-collection to knowing what de-duplication protocol to follow, this session will share tactical, practical examples of ediscovery gotchas –in 3 minutes or less each!

Speakers to include: George Socha (Discussion Leader), EDRM Consultant, Socha Consulting LLC; Josh Zybershlag (Discussion Leader), Vice President, Client Experience, Kroll Ontrack.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

eDiscovery Daily will also be “tweeting” periodically throughout LTNY, so feel free to check out our updates at twitter.com/Cloud9Discovery.

So, what do you think?  Are you planning to attend LTNY 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 New York 2016!: eDiscovery Trends

Today is the start of LegalTech® New York 2016 (LTNY) and, for the sixth(!) year in a row, eDiscovery Daily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the New York area, I encourage you to check out the show – there are a number of sessions (both paid and free) available and over 174 exhibitors providing information on their products and services.

While at the show, we will (also for the sixth year in a row!)  be interviewing several industry thought leaders to see what they think are the significant trends for 2016 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 75 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

9:00 – 10:00 AM:

Keynote Panel Discussion – How is Technology Being Used in Today’s Court Rooms and Cases?

In this session, our panel of United States judges describes what they are currently seeing in their courts regarding big data, analytics, eDiscovery and other technologies.  Discussion points include:

  • How are today’s attorneys incorporating these technologies into their cases?
  • How does managing big data and analytics proactively and employing eDiscovery benefit the litigation process?
  • How do judges view emerging technologies such as products that provide judicial intelligence, including the use of predictive analytics in order to gain insight into judicial behavior?
  • What does the future legal technology landscape look like and how should we prepare?

Speakers to include: Erin E. Harrison (Discussion Leader), Editor-in-Chief, Legaltech News, ALM; Hon. James C. Francis, United States Magistrate Judge, United States District Court, Southern District of New York; Hon. Lorenzo F. Garcia, Chief Magistrate Judge Emeritus, United States District Court, District of New Mexico; 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; Hon. Pamela Meade Sargent, United States Magistrate Judge, United States District Court, Western District of Virginia.

10:30 – 11:45 AM:

Taking a Step Back Could Leap You Ahead of eDiscovery

While the best of intentions are there, most of us still wait for a lawsuit, investigation, or data breach before we think about eDiscovery.  In fact, 50% of us still manually search across electronic and paper records when it happens.  Just a little bit of proactive planning can go a long way to help you more efficiently access, evaluate, and respond to legal matters.  Join these experts to learn the baby steps you can take towards more holistic information governance.

Speakers to include: Matthew Levy (Discussion Leader), Vice President eDiscovery, Hewlett Packard Enterprise; Gareth Evans, Partner, Gibson, Dunn & Crutcher LLP; Marty Provin, Executive Vice President, Jordan Lawrence; Michael Simon, Principal, Seventh Samurai.

Protecting the Company’s Crown Jewels in the Age of Information Security Threats

Is all enterprise data created equal? If not, should all enterprise data have the same protections? The ethical pitfalls of well-publicized data breaches, from customer credit card data to employee health records, highlight the increasing need for companies to better secure truly sensitive data. Developing a tiered approach to protecting the company’s “crown jewels” can help reduce costs as well as reduce the risk of future breaches. Hear from a panel of industry experts, including in-house legal and information governance executives, as they discuss the different strategies at work with a “crown jewels” approach and practical steps your organization can take to minimize information security threats.

Speakers to include: Jake Frazier (Discussion Leader), Senior Managing Director, FTI Technology; Michael Lisi, Director of Litigation Support, Fidelity Investments; Sylvan “Sibito” H Morley III, Vice President of IT Infrastructure and Operations, DaVita Kidney Care; Gail Rodgers, Partner, DLA Piper, Jason Stearns, Director, Legal and Compliance Group, Blackrock.

Controlling the Total Cost of Discovery: Tools, Rules, and Accruals

The Great Recession may be over, but the pressure on corporate counsel to keep reducing litigation costs has not subsided. And as volumes of electronic information grow, the expense of dealing with that information in discovery remains a substantial portion of litigation budgets. In this CLE program, legal department professionals will explore three strategies for controlling discovery costs –

  • Tools: How to cut the cost of e-discovery programs by incorporating efficiency-boosting analytics tools into standardized, routine workflows.
  • Rules: How to leverage new amendments to the Federal Rules of Civil Procedure, which hold the promise of reducing costs by increasing the focus on proportionality in discovery.
  • Accruals: How to better understand—and contain—discovery costs by strategically collecting and analyzing discovery-related fees billed by law firms and other service providers.

Speakers to include: Jeanne Somma (Discussion Leader), Discovery Practice Director, DiscoverReady; Marla Bergman, Vice President, Associate General Counsel , Goldman Sachs; Scott Coonan, Senior Director of IP, Litigation & Strategy, Juniper Networks; John Marchese, Executive Director & Associate General Counsel , CME Group; Thane Vallette, Associate General Counsel, HP.

How is the New What:  Re-Thinking Legal Work

This CLE session will address a fundamental shift caused by the impact of technology on the practice of law.  The real technology innovations today are not about the speed, efficiency, or cost of what lawyers do.  They are all about re-thinking how legal work is delivered in the first place.   It will take a long-term view of a wide variety of technologies and aspects of change in the industry, including the structure of legal work and legal services organizations.

It will address aspects of change including:

  • The legal tech startup landscape, and the areas where they are having most impact
  • The new structure of the industry, with more players that aren’t traditional law firms
  • The rise of the legal operations function in in-house law departments and its impact
  • The impact of technology on courts and access to justice
  • Blockchain technology and the prospect of smart contracts
  • The evolving design of legal services and business models in the industry

Speakers to include: Joe Borstein, Esq., Global Director, Pangea3, Thomson Reuters Legal, David Curle, Director, Strategic Competitive Intelligence, Thomson Reuters Legal.

12:30 – 1:30 PM:

TAR 2.0 for Smart People: Moving Beyond E-Discovery Review

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 early case assessment, inbound productions, privilege protection and more.

Smart legal professionals are using a new protocol called Continuous Active Learning (CAL), which has proven more effective than first-generation TAR engines. With CAL, the system gets smarter as review progresses. That means you find relevant documents more quickly and at lower cost. In addition, CAL is simpler and more flexible, solving TAR 1.0 limitations in dealing with rolling deliveries and low-richness collections.

Join our panel of e-discovery veterans for an informative look at how corporations, government agencies and their law firms are taking advantage of the power of TAR 2.0 with CAL to move beyond simple e-discovery review. Topics include:

  • An introduction to CAL: How it works with TAR 2.0 and why it matters
  • Making TAR 2.0 the standard at your law firm: An e-discovery lawyer’s perspective
  • TAR 2.0 for corporate litigation: in-house and outside counsel’s views, and
  • TAR 2.0 for government agencies: Adapting new procedures in a government setting.

In this hour, we 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: John Tredennick (Discussion Leader), CEO and Founder, Catalyst Repository Systems, Inc.; Diane Barry, Assistant Attorney General/eDiscovery Attorney, Office of the Attorney General, Commonwealth of Massachusetts, 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.

2:00 – 3:15 PM:

Ditch That Data to Mitigate Risk and Reduce Legal Spend

The volume of your data increases 40% every year.  Manual processes and legacy systems simply can’t keep up.  Learn practical knowledge on how people, process, and technology can help your organization create a leaner, more value driven information store while mitigating risk and reducing legal spend.

Speakers to include: Greg Clark (Discussion Leader), Chief Field Technologist, Hewlett Packard Enterprise; Barclay T. Blair, Founder & Executive Director , Information Governance Initiative; Mark W. Cowing, Partner, Shook, Hardy & Bacon LLP; Michael Simon, Principal, Seventh Samurai.

Using Analytics in E-Discovery; Swim Instead of Sink in the Era of Big Data

Many generally understand the concept of analytics, but don’t know how to apply these technology advancements to achieve practical benefits during the e-discovery process. Data mining technology, and the visual representation of mined data, offer a paradigm shift for how legal teams can uncover key facts. These technologies can quickly and effectively reveal the small subset of critical data in a universe of hundreds of millions of emails, effectively circumventing comprehensive review or greatly accelerating the review process. Attendees will learn about common analytical and visualization technology and how practitioners are applying these tools to speed fact-finding, reduce e-discovery costs and avoid ethical pitfalls.

Speakers to include: Kathryn McCarthy (Discussion Leader), Senior Managing Director, FTI Technology; Nia Castelly, E-Discovery Counsel, Google; Sandra Rampersaud, Litigation Attorney, Cravath; Jessica Ross, Vice President, Litigation & Regulatory, Deutsche Bank.

Innovation or Inertia in eDiscovery: How Far Have We Come and Where Do We Need to Be?

Once, the very idea of eDiscovery itself was innovative. Today, we are years beyond eDiscovery as a novel concept, but some would argue that true innovation in the industry has been slow to arrive. Yet, innovation is critical to our ability to meet increasingly demanding regulatory requirements, manage constantly escalating costs, and control ever-evolving risks. The panel will discuss innovation in eDiscovery from the perspective of corporate users. Panelists will discuss how their current workflows have kept up with rapidly changing technology and increasingly stringent cost pressures. The discussion will address some of the key challenges facing the industry in the next five years and what types of innovation will be needed to overcome them, as well as the factors that will enable or stifle that innovation.

Speakers to include: Priya Keshav (Discussion Leader), Managing Director, KPMG LLP; Jeff Nass, Senior Counsel, eDiscovery, Boehringer Ingelheim, Kara Ricupero, Head of eDiscovery and Records and Information Management, eBay, Brett Tarr, Counsel and Director of Ediscovery, Caesars Entertainment Corporation.

Away With Words: The Myths and Misnomers of Conventional Search Strategies

Unparalleled advances in computing power and the ability to rapidly analyze data have been major drivers of business growth in the information economy. Traditional businesses have also come to rely heavily on analyzing data rapidly to make business decisions. This—while the volume, variety and velocity of data is increasing exponentially. One sector that has noticeably lagged behind is the legal industry. Relying on decades-old tools, technology and processes will not meet the challenges of finding, analyzing and deriving knowledge from the data deluge we are experiencing. This has to change. Fortunately, it is about to.

Speakers to include: Tom Barnett, Special Counsel eDiscovery and Data Science, Paul Hastings LLP; Ed Sohn, Sr. Director, Client Services, Thomson Reuters Legal.

3:45 – 5:00 PM:

Don’t Let Your Information Undermine Cybersecurity

Security is not a corporate IT problem, and failure to address it risks not just fines and financial loss, but long-term brand erosion.  The information governance you implement provides a critical understanding of the what, where, and who of your or your clients’ data that can move you closer to preemptive cybersecurity.  This session discusses how an end-to-end information governance strategy can help you protect your data assets and ethical obligations to your clients’ security.

Speakers to include: Doug Weiner (Discussion Leader), Senior Counsel, Cyber Security, Hewlett Packard Enterprise; Joseph S. Abrenio, Vice President, Delta Risk LLC, A Chertoff Group Company; Martha Berek, Associate General Counsel, IT & Corporate Operations, United Technologies Corporation; James A. Merrifield, Information Governance Manager , Robinson & Cole LLP; Julia Montgomery, Solution Architect, Onguard Security Awareness, Traveling Coaches, Inc.

Advice from Counsel: How Legal Departments are Innovating & Disrupting the E-Discovery Process

Alternative billing models. Microsoft Office 365 and other cloud data sources. Cross-border litigation. The rise of machine learning and AI. From technical needs to business processes, the legal industry is riding the wave of innovations affecting the greater technology landscape. How are leading in-house legal teams adapting and evolving in their strategies to handle or even drive these disruptive forces? And what implications do these innovations have for the law firms that serve them? This session will feature results from the 2016 Advice from Counsel study on the disruptive forces affecting corporate counsel as well as strategies and hacks for embracing changes in legal technology for 2016 and beyond.

Speakers to include: Sophie Ross (Discussion Leader), Senior Managing Director, FTI Technology; Marla Bergman, Vice President, Associate General Counsel, Goldman Sachs; Kelly Clay, Senior Counsel and Director of Information Management , GlaxoSmithKline; Magistrate Judge Paul Singh Grewal, United States District Court , Northern District of California; Dera J. Nevin, Director, eDiscovery Services, Proskauer Rose LLP; Jessica Richheimer, Associate, Ropes & Gray.

Information Governance in Action: Data Reduction

This panel of distinguished information governance leaders will detail drivers for defensible data reduction and how its link to larger data governance and big data concerns make data reduction corporate requirement. Actual global governance designs, implementations and use cases will be detailed. The presentation and discussion will include details on secure, compliant data reduction around the full universe of information governance needs, and how to justify budget. The presentation will incorporate specific industry knowledge, experience and leading practices that have led to actionable recommendations for Fortune 100 global organizations. It will detail how data reduction is a mitigating factor against privacy, confidentiality and intellectual property breaches due to large and unmanageable information volumes. It will also include a discussion of how organizations have benefitted from Information Governance development and implementation.

Speakers to include: Steve Stein (Discussion Leader), Principal, KPMG LLP; Richard P. Kessler, Executive Director, Information Lifecycle Governance, UBS, David Smythe, Information Lifecycle Management; Firmwide Data Management, JPMorgan Chase, Jason Stearns, Director, Legal and Compliance Group, Blackrock.

Managing Data Security and Privacy in Litigation: Securing Every Link in the Chain

It’s difficult enough to effectively secure private and sensitive information within a company’s own four walls; when information flows into litigation discovery, weak links in the data security chain create substantial additional risk. In this CLE program, in-house counsel and e-discovery professionals will discuss how they manage this risk and protect the company’s valuable data assets. The panelists will address:

  • Data security expectations for e-discovery providers and law firms;
  • Measures to protect information turned over to opposing parties and the court; and
  • Effective ways to screen for uber-sensitive information like trade secrets, source code, unreleased products, and personally identifying information.

Speakers to include: Amy Hinzmann (Discussion Leader) , EVP, DiscoverReady; Ruth Hauswirth, Special Counsel and Director of Litigation and E-Discovery Services and Senior Attorney, Cooley LLP, Allan Hsu, Director, eDiscovery/Litigation, Fannie Mae, Chris Sitter, EnCE, eDiscovery & Digital Forensics Senior Manager, Juniper Networks, Michelle Spak, Associate General Counsel, Duke Energy Corporation.

The Ediscovery Question Challenge, If You Choose to Accept

Do you have an ediscovery ‘headache’ that will not subside?  Are you perplexed by an ediscovery question that seems to have no answer? Do you want expert advice, but don’t want to pay consultancy rates?  Join our session to ask the assembled panel of ediscovery experts the seemingly impossible and difficult questions.  They like a challenge, so if you are currently dealing with pricing or budgeting issues, poorly managed processes, or just have a complex data nightmare – submit your toughest questions to our panel of ediscovery experts (they can handle it).  Maybe you don’t have an impossible question, that’s great!  You are welcome to ask a random ediscovery question, or request more information around a nuanced ediscovery topic during this interactive session.  The most-challenging question just might win a prize.  Is this a challenge you are willing to accept? If so submit your questions here:  http://lms.tr.com/LTNY2016

Speakers to include: Greg McPolin (Discussion Leader), COO, Thomson Reuters; Scott Reents, Senior Associate and Discovery Counsel, Clearly Gottlieb Steen & Hamilton LLP; Ed Sohn, Sr. Director, Client Services, Thomson Reuters Legal; Martin Tully, Partner, Akerman LLP, Skip Westfall, FVS Managing Director – FTS Practice Leader, Grant Thornton LLP.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

eDiscovery Daily will also be “tweeting” periodically throughout LTNY, so feel free to check out our updates at twitter.com/Cloud9Discovery.

So, what do you think?  Are you planning to attend LTNY 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.

KMWorld Highlights CloudNine and Simplified eDiscovery

Extract from article in KMWorld by Judith Lamont on January 31, 2016: CloudNine is a cloud-based product used for e-discovery and investigation. The company also provides professional services to organizations that want to delegate some or all of their discovery tasks to a third party. CloudNine is designed to be simple to use, with a straightforward online process for uploading, reviewing and producing electronically stored information for litigation and investigations.

“Although we are CloudNine, we are not cloud-based the way most people think of it,” says Brad Jenkins, president and CEO of CloudNine. “We use a private infrastructure, and the data is highly secure, residing on dedicated servers on a dedicated network in a Tier 4 data center. We don’t use the public cloud at all.” Two pricing models are available; pay-as-you-go plans start at $25/GB per month, which includes 30 days of hosting but does not include processing (normally $100/GB for self-service processing). Subscription plans start at $1,000 per month, which includes unlimited self-service processing and up to 50GB of hosting.

The customers for CloudNine have typically been companies that provided litigation support as well as small to medium-sized law firms. Recently, larger law firms have started to use it to manage e-discovery for their clients, and that group of customers now includes dozens of firms, including more than 50 of the top 250 law firms. In addition, large (Fortune 100) corporations are using CloudNine for internal investigations and compliance.

CloudNine uses dtSearch as its search software. “It indexes very quickly,” says Doug Austin, VP of professional services, “and handles a range of file types from e-mail to documents and database information.” As for processing, CloudNine automatically unpacks the data, pulls out metadata and text and uses OCR to convert image files to searchable text.

“One thing that customers are very interested in is analytical capabilities,” Austin adds. “They want to be able to get an idea early on about whether they should settle or litigate. If they can analyze their data quickly, they can decide what their exposure is and then choose the best course of action. The simplified e-discovery automation that CloudNine provides enables our clients to perform that analysis and make those decisions quickly and effectively.”

Source: Article: Legal Applications of KM Trend Toward Flexibility, Simplicity

For the complete article, click here.

Thanks to ACEDS and Rob Robinson, I Have a LegalTech “Travel Day” Topic to Cover: eDiscovery Trends

LegalTech® New York 2016 (LTNY) starts tomorrow!  As I painfully learned a couple of years ago, travelling to LTNY can sometimes be challenging, so I’m leaving plenty of time to get there this year, which leaves me little time to write a post for today.  Thankfully, the New York Metro Area chapter of ACEDS and Rob Robinson (author of the terrific Complex Discovery site) have just published a podcast about eDiscovery trends that I think you will find quite informative!

Joe Bartolo of Kiersted Systems and Bradley Schaffel of Wilmer Hale host this latest edition of the ACEDS New York Metro Area podcast series, which is an interview with Rob covering a variety of topics, including his thoughts on the automation trend within the eDiscovery industry, a discussion of the four generations of eDiscovery technology (which we covered previously here), the emergence of SaaS providers in the industry, requirements for a complete eDiscovery solution and Rob’s take on various useful industry resources.  Well worth a listen if you can find a free 16:16 (i.e., 16 minutes and 16 seconds) during your day.  :o)

A link to the podcast can be found on the Complex Discovery site here.  Thanks guys, I owe you one!

So, what do you think?  Are you attending LegalTech this week?  If so and if you see me, say “hi”!  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.

Appeals Court Upholds Terminating Sanctions For Wipe of Cell Phone: eDiscovery Case Law

In Woodell v. Bernstein, et. al., No. 14-2836 (Cal. App., Dec. 30, 2015), the California Court of Appeals affirmed the judgment of the trial court, which imposed terminating sanctions against the plaintiff for spoliation of evidence and dismissed his lawsuit with prejudice after the plaintiff had wiped his cell phone, which was key to the case.

Case Background

In this defamation case, the plaintiff claimed to have lost his cell phone while out walking his dog. One of the defendants found the cell phone on his front lawn near an uprooted sign endorsing his co-defendant for public office. The defendants notified the media and the police that they found the cell phone near the sign and claimed that the plaintiff must have removed the sign, which he denied and, eventually, sued the defendants for defamation.

During deposition of the plaintiff when he was asked for a photo that he had taken the night he lost his phone, he admitted that he had since wiped the phone, stating that “I’ve completely wiped the phone, as I do – did many times working for Google, putting new operating systems on. So whatever photo is – if I have it, I’ll be happy to produce it, but it’s certainly not on the phone anywhere.”  He ultimately indicated that he wiped out the contents of the phone “[s]ometime in early 2012.” He said he did that because the phone was “broken” and he “had to reinstall the operating system”.  When the defendants requested to inspect the phone and arranged to do so, the phone was provided uncharged with the charging connector damaged so that it could not be connected and charged.  In April 2014, the defendants filed a joint motion for terminating sanctions.

Trial Court’s Ruling

The trial court observed that the defendants provided “ample evidence” to show that the plaintiff delayed and obstructed their ability to inspect the phone and, when finally allowed to inspect it, the phone battery was dead and the charging mechanism had been irreparably damaged preventing the phone from being plugged into a charger.  The court added: “What is most disconcerting, however, is the action taken by [Woodell] prior to filing the lawsuit, which included allegedly capturing for his own purpose information from the phone favorable to his position, and then completely wiping clean the operating system such that all potentially relevant information retained on the phone was destroyed.”

The trial court also noted that the plaintiff, in his deposition, stated that he “wiped clean” the phone because he had done that “many times working for Google” but in his declaration he stated that Google instructed him to wipe out the “corrupted system.” In assessing the contradictory evidence, the court found that the plaintiff “was contemplating legal action in 2011, well before he destroyed the contents of the phone in 2012.”  As a result, the trial court granted the defendants’ motion for terminating sanctions, determining that it was “patently unjust” to force the defendants to continue to defend an action when they had been denied potentially exculpatory evidence, and dismissed the plaintiff’s complaint with prejudice.

The plaintiff appealed the ruling, arguing that terminating sanctions were not appropriate because there was no pattern of conduct with regard to discovery and that the trial court committed prejudicial error when it made factual and credibility findings without holding an evidentiary hearing.

Appellate Court’s Ruling

Regarding the plaintiff’s argument that sanctions were not appropriate because there was no pattern of conduct with regard to discovery, the appellate court stated “It is undisputed that the phone Woodell produced no longer contained the critical data, and the production of the phone was of no value to defendants. Woodell’s argument that the law prevented the trial court from imposing terminating sanctions when there was no pattern of discovery abuse or no violation of a prior discovery order is incorrect.”  The appellate court also found that the trial court did not abuse its discretion in finding – without holding an evidentiary hearing – that the defendants met their burden of showing that the plaintiff deliberately removed the data from the phone in anticipation of litigation.  As a result, the appellate court affirmed the lower court’s ruling to dismiss the lawsuit.

So, what do you think?  Did the spoliation warrant termination sanctions?  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.

For a Positive Outlook to Discovering Emails, You Need a Closed Outlook: eDiscovery Best Practices

Does that statement seem confusing?  Let me explain.

Let’s call this a “tip of the day”.  As you may know, at CloudNine (shameless plug warning!), we have an automated processing capability for enabling clients to load and process their own data – they can use this capability to load their data into our review platform or they can even process data for loading into their own preferred review platform if they want.  So, we can still help you even if you already use Relativity or a number of other popular platforms.

Regardless of that fact, most of our users are using the processing capability to process emails, usually from Outlook Personal Storage Table (PST) files.  Let’s face it, despite increased volumes of social media and other types of electronically stored information, emails are still predominant in eDiscovery.  And, for those users, we get one issue more than any other when it comes to processing those Outlook emails:

They still have Outlook open with the PST file opened when they attempt to upload that PST file or when they try to create a ZIP file containing the Outlook PST.

The resulting ZIP file that is created (either by the user or by our client application if the data is not already contained in an archive file) will almost invariably be corrupted or empty.  Either way, this results in a failure during processing of the loaded data – because, that data is simply corrupt.

So, my tip of the day is this: Before attempting to create a ZIP (or RAR or other type of archive) of a PST file (or before you upload it to a platform like CloudNine for processing), make sure that Outlook is closed or at least that the PST file is closed within Outlook.  For a positive outlook to discovering emails, you need a closed Outlook.

Does that make sense now?  :o)

So, what do you think?  Is email still the predominant source of discoverable ESI in your organization?  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.