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Electronic Discovery

2015 eDiscovery Case Law Year in Review, Part 2

As we noted yesterday, eDiscovery Daily published 89 posts related to eDiscovery case decisions and activities over the past year, covering 72 unique cases!  Yesterday, we looked back at cases related to admissibility and proportionality, production format disputes and (once again) the ubiquitous Apple v. Samsung case.  Today, let’s take a look back at cases related to disputes about discovery, eDiscovery cost reimbursement and issues related to privilege and confidentiality assertions.

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

DISPUTES ABOUT DISCOVERY

Last year, we covered cases where parties requested discovery on their opponent’s discovery process.  Those, and other general disputes about the discovery process – including requesting 30(b)6) depositions and a notable dispute about whether contract attorneys should receive overtime pay – are included in this category.

Calling First 30(b)(6) Witness a “Waste of Time”, Court Orders a Second Deposition: In Rembert v. Cheverko et. al., New York District Judge Katherine B. Forrest granted the plaintiff’s motion “in its entirety” to compel the defendants to provide a properly prepared 30(b)(6) witness to testify regarding the defendants’ preservation and production of emails, to provide copies of document retention/preservation notices issued and to reimburse plaintiff’s costs and fees associated with having to conduct an additional deposition.

Court Acknowledges Lack of Expertise to Recommend Search Methodology, Orders Parties to Confer: In ACI Worldwide Corp. v. MasterCard Technologies, LLC and MasterCard International, Inc., Nebraska Magistrate Judge F.A. Gossett, acknowledging that the Court “simply does not have the expertise necessary to determine the best methodology to be employed in retrieving the requested materials in a safe, non-obtrusive, and cost-effective manner”, ordered the parties to “once again” confer in an effort to reach an agreement regarding the search methodology to be employed by the defendants in retrieving the information requested by the plaintiff.

Court Agrees with Plaintiffs, Orders Provision for Qualitative Sampling of Disputed Search Terms: In the case In Re: Lithium Ion Batteries Antitrust Litigation, California Magistrate Judge Donna M. Ryu ordered the defendants to comply with the plaintiffs’ proposed qualitative sampling process for keyword search terms, citing DaSilva Moore that keywords “often are overinclusive”.

Court Rules on Dispute about Search Terms and Organization of Produced Documents: In Lutzeier v. Citigroup Inc., Missouri District Judge Ronnie I. White ruled on two motions to compel discovery by the plaintiff, addressing (among other things) disagreement on search terms to be used by the defendant and lack of organization and labeling of the defendant’s production to date.

Should Contract Review Attorneys Receive Overtime Pay?: Whether they should or not, maybe they can – if they’re found NOT to be practicing law, according to a ruling from the Second U.S. Circuit Court of Appeals.  That case was ultimately settled (click here for more information).

“Quality is Job 1” at Ford, Except When it Comes to Self-Collection of Documents: In Burd v. Ford Motor Co., West Virginia Magistrate Judge Cheryl A. Eifert granted the plaintiff’s motion for a deposition of a Rule 30(b)(6) witness on the defendant’s search and collection methodology, but did not rule on the issue of whether the defendant had a reasonable collection process or adequate production, denying the plaintiff’s motion as “premature” on that request.

EDISCOVERY COST SHARING AND REIMBURSEMENT

This year, eDiscovery cost reimbursement began to trend toward the positive as there were four cases where the prevailing party was awarded reimbursement of eDiscovery costs and only one case where requests for reimbursement of eDiscovery costs were denied (one requested further declaration by the requesting party).

Court’s “Jazzy” Decision to Award Costs May “Bug” Plaintiff, But Defendant Doesn’t Mind a “Bit”: In Fitbug Ltd. v. Fitbit, Inc., California District Judge Samuel Conti, throwing in a jazz reference during his opinion, ruled to tax over $63,000 in costs to be paid to the prevailing defendant in the case.

Plaintiff Awarded Sanctions and Reimbursement of Some eDiscovery Costs: In Engineered Abrasives, Inc. v. American Machine Products & Service, Inc., Illinois District Judge Sara L. Ellis awarded the plaintiff damages, attorneys’ fees and some requested costs, as well as granting the plaintiff’s motion for sanctions and ordering the defendants to reimburse the plaintiff $12,800 for the cost of conducting a forensic computer examination, which the plaintiff maintained was necessitated by Defendants’ evasive and incomplete responses and their failure to produce documents during discovery.

Image is Not Only Everything, It Is Also Legally a Copy, Appeals Court Rules: In Colosi v. Jones Lang LaSalle Americas, Inc., the Sixth Circuit Court of Appeals affirmed the District Court’s judgment to approve a $6,369.55 bill of costs which included synchronization of deposition videos and imaging of hard drives that the defendant submitted after prevailing in the case.

Court Upholds Review of Taxable Costs by Clerk, Awards over $57,000: In Comprehensive Addiction Treatment Center, Inc. v. Leslea, Colorado District Judge Christine M. Arguello denied the plaintiffs’ motion to review Clerk’s Taxing of Costs Under F.R.C.P. 54(D)(1), upholding the award by the Clerk of the Court of $57,873.61 in taxable costs.

Appeals Court Reverses Award for Attorney Fees for Overbroad ESI Requests: In Bertoli et al. v. City of Sebastopol, et al., the California Court of Appeals, while not disagreeing with the trial court’s finding that the plaintiff’s ESI request was “unfocused and nonspecific, unduly burdensome, and an alarming invasion of privacy rights”, disagreed that their Public Records Act (PRA) requests were “clearly frivolous” and reversed the trial court’s order for attorneys fees and costs.

Court Orders Defendant to Submit Further Declaration after Plaintiff Disputes its Claimed eDiscovery Costs: In Bonillas v. United Air Lines Inc., California Chief Magistrate Judge Elizabeth D. LaPorte ordered the defendant to submit a further declaration supporting its claimed eDiscovery costs by addressing several issues raised by no later than January 5, 2015, with the plaintiff having until January 8, 2015 to submit a brief response to the further declaration if he chose to do so.

PRIVILEGE  AND CONFIDENTIALITY ASSERTION ISSUES

There were a few cases related to disputes regarding privilege and confidentiality, including one where the producing party submitted a 2,941(!) page privilege log and another where a party classified 95% of its production as “highly confidential”!  Here are six cases discussing privilege and confidentiality assertions:

Court Denies Plaintiff’s Request for In Camera Review of Defendants’ Privileged Emails: In Armouth International, Inc. v. Dollar General Corp. et. al., Tennessee Magistrate Judge Barbara D. Holmes, calling the plaintiff’s request a “fishing expedition”, denied the plaintiff’s expedited motion to compel, requesting that the defendants be required to produce emails that were either withheld or redacted based on claims of attorney-client privilege for an in camera review of the emails by the Court to confirm the privilege claims.

Privilege Log Identifies Additional Documents to be Produced by Defendant: In U.S. Securities and Exchange Commission v. Commonwealth Advisors, Inc. et al., Louisiana Magistrate Judge Stephen C. Riedlinger ordered the defendants to produce additional documents that were identified on the defendants’ privilege log, but for which the defendants had waived attorney-client privilege.

Defendant Ordered to Produce Emails Between Non-Attorney Employees That Were Deemed Privileged: In Cicon v. State Farm Mutual Auto Ins. Co., Pennsylvania District Judge Richard P. Conaboy denied the plaintiff’s request for the defendant to produce attorney-client communications that occurred before the filing of the complaint, but granted his request regarding communications between non-attorney employees before the plaintiff’s counsel sent a letter threatening litigation, ordering the defendant to produce those emails, while allowing the defendant to redact explicit discussion of an attorney’s advice.

Court Orders Plaintiff to Re-Review 95% of its Production Classified as “Highly Confidential”: In Procaps S.A. v. Patheon Inc., after the plaintiff designated 95% of its forensically-produced documents (141,525 of 148,636) as “highly confidential”, Florida District Judge Jonathan Goodman ordered the plaintiff to re-review and re-designate those documents within ten days, and also assessed a $25,000 fees award against the plaintiff’s outside counsel to compensate the defendant for its efforts in reviewing the documents.

If You’re Going to Submit a 2,941 Page Privilege Log, You’d Better Be Able to Demonstrate Privilege: In United States v. Louisiana, Louisiana Magistrate Judge Richard L. Bourgeois, Jr., after reviewing 40 documents provided by the defendant for in-camera review, granted the plaintiff’s Renewed Motion to Compel a Proper Privilege Log, after denying the original motion because the plaintiff only provided 13 examples of “insufficient descriptions” within the privilege log’s entries.

Apple’s Motion to Seal eDiscovery Vendor Invoice Line Items Granted by Court: In GPNE Corp. v. Apple, Inc., California District Judge Lucy H. Koh granted the defendant’s motion to file under seal specific line items from third-party e-discovery vendor invoices that were submitted in support of its bill of costs.

Tomorrow, we will cover cases related to cooperation issues, social media and mobile phone discovery, the one case involving technology assisted review and the first part of the cases relating to sanctions and spoliation (yes, there were that many).  Stay tuned!

Want to take a look at cases we covered the previous four years?  Here they are:

So, what do you think?  Did you miss any of these?  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.

2015 eDiscovery Case Law Year in Review, Part 1

Did you think we forgot?  No, we didn’t forget!

It’s time for our annual review of eDiscovery case law!  Once again, we had more than our share of sanctions granted and denied, as well as disputes over production formats, admissibility of electronically stored information (ESI) and even a dispute regarding whether contract review attorneys can receive overtime pay!  So, as we have done for the last four years, let’s take a look back at 2015!

Last year, eDiscoveryDaily published 89 posts related to eDiscovery case decisions and activities over the past year, covering a record 72 unique cases!  We’ve covered over 300 unique cases since our inception back in 2010.  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

Nonetheless, for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts (a few of them could be categorized in more than one category, so we took our best shot).  Perhaps you missed some of these?  Now is your chance to catch up!

ADMISSIBILITY AND PROPORTIONALITY

As always, there are numerous disputes about data being produced and not being produced and whether the costs to do so are overly burdensome.  Here are seven cases related to admissibility, the duty to preserve and produce ESI and the proportionality for preserving and producing that ESI:

Court Denies Plaintiff’s Motion to Compel the Defendant to Assist with Access to its Data: In SFP Works, LLC v. Buffalo Armory, Michigan Chief District Judge Gerald E. Rosen, agreeing with the defendant that the plaintiff’s motion was untimely, and that Plaintiff “unreasonably declined” several options proposed by the defendant for accessing the data that was produced to it by the defendant, denied the plaintiff’s motion to compel access to operational data.

Defendant’s Wife Ordered to Turn Over iPhone for Examination: In Brown Jordan International, Inc. et. al. v. Carmicle et. al., Kentucky District Judge Greg N. Stivers granted the plaintiffs’ expedited motion to compel the defendant’s wife to produce her iPhone for a forensic examination for information related to the case.

Defendant Compelled to Restore and Produce Emails from Backup Tapes: In United States ex rel Guardiola v. Renown Health, Nevada Magistrate Judge Valerie P. Cooke concluded that emails contained on backup tapes held by the defendants was not reasonably inaccessible due to undue cost and, even if the emails were reasonably inaccessible due to undue burden or undue cost, “good cause supports their discoverability”. Also, after an analysis of cost-shifting factors found only one factor favored cost-shifting of the production of emails to the relator, Judge Cooke ordered the defendant to bear the cost of restoration and production.

Court Resolves Dispute Over Scope of Databases and Searches to be Performed: In Willett, et al. v. Redflex Traffic Systems, Inc., New Mexico District Judge Lourdes A. Martinez ordered the defendants to produce a spreadsheet referred of file folders, with information for the files on their virtual server(s), the plaintiffs to provide the defendant with a reasonable list of search terms, limited to the relevant time frame, parties, and issues of this case and for the defendants to perform the searches specified by the plaintiffs within ten days of receiving the searches.

Court Rules that Automatically Generated Read Receipt is Not Hearsay: In Fox v. Leland Volunteer Fire/Rescue Dep’t Inc., North Carolina District Judge Louise W. Flanagan ruled that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay.

Court Has a “Beef” with Plaintiff’s Proportionality Argument: In Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC, Kansas Magistrate Judge Teresa J. James granted the defendants’ motion to compel production of documents, overruling the plaintiffs’ objections to the discovery request in finding that “Plaintiff has not satisfied its burden to show that producing the requested documents would be unduly burdensome”.

Plaintiff Ordered to Image its Sources of ESI, Respond to Disputed Discovery Requests: In Electrified Discounters, Inc. v. MI Technologies, Inc. et al., Connecticut Magistrate Judge Donna F. Martinez granted the defendant’s motion to compel the plaintiff ‘s responses to discovery and ordered the plaintiff to “image its sources of electronically stored information (‘ESI’), including its hard drives and QuickBook files”.

APPLE V. SAMSUNG

We may be done with the past, but the past is not done with us.  We couldn’t help but take a couple of looks back at Apple v. Samsung to see where the dispute stood (look at 2014, part 3 for more decisions related to this case).  And, by the way, I’ve lost count how many times Samsung has been ordered, then received a stay, to pay the judgment amount.

Believe it or Not, Apple v. Samsung is Still Going Strong: eDiscovery Case Law: It appears that Samsung may, just may, finally have to pay some damages to Apple for patent infringement.

Samsung Doesn’t Have to Write a Check After All…Yet: Earlier, we revisited the Apple v. Samsung case, which we covered so much last year, it had its own category in our annual case law review. On September 18, U.S. District Court Judge Lucy Koh granted Apple’s motion for partial final judgment in the case that Apple lodged against Samsung in 2011, seemingly clearing the way for Apple to collect $548 million in damages from Samsung. But, on Friday, Samsung received an emergency stay on that order.

PRODUCTION FORMAT DISPUTES

It seems that there are more disputes regarding the form of production than ever.  Here are the ten cases involving production format disputes:

Defendant Ordered to Produce Unredacted Versions of Agreements and Shipment Data: In Mervyn v. Atlas Van Lines, Inc. et. al., Illinois Magistrate Judge Susan E. Cox granted the plaintiff’s motion to compel the defendants to produce unredacted owner-operator agreements and shipment data, rejecting the defendants’ argument that producing both would be an undue burden.

Appellate Court Upholds Ruling to Require Production in Native Format: In the case In re State Farm Lloyds, the Texas Court of Appeals, finding that the relator failed to meet its burden to support its objection that it could not produce the discovery through reasonable efforts, denied the petition for writ of mandamus filed by the relator in which it contended that the trial court abused its discretion by ordering the production of discovery in native or near-native formats rather than the “reasonably usable” formats it proposed.

Court Denies Defendant’s Motion to Require Plaintiff to Re-Produce Data in a More Usable Format: In United States v. Meredith, Kentucky Senior District Judge Charles R. Simpson, III denied the defendant’s motion to compel production of electronically stored information (ESI) by the plaintiff in a usable format, agreeing that the plaintiff had fulfilled its discovery production obligation pertaining to the manner and format of the ESI.

Court Finds No Discovery Abuses by Defendant that Produced MSG Instead of TIFF Files: In Feist v. Paxfire, Inc., New York Magistrate Judge Ronald L. Ellis denied the plaintiff’s request for reimbursement of costs and expenses related to document production, finding that the plaintiff had made no showing of significant discovery abuses by the defendant, and had not demonstrated that the defendant engaged in intentionally burdensome production.

Court Orders Defendant to Produce Metadata for Previously Produced Emails: In Prezio Health, Inc. v. Schenk, et. al., after “a careful in camera review” of emails responsive to eighteen keyword search terms, Connecticut Magistrate Judge Joan Glazer Margolis ordered the defendant to produce metadata for eight specific emails which had already been produced to the plaintiff.

Plaintiff Ordered to Re-Produce Files in Native Format Because it Failed to Meet and Confer with Defendant: In Themis Bar Review, LLC v. Kaplan, Inc., California Magistrate Judge Barbara L. Major ordered the plaintiff pay for the cost to produce files in native format after the plaintiff originally produced unsearchable PDF images without metadata and failed to properly meet and confer with the defendant regarding production format as stipulated in the parties’ Joint Discovery Plan.

Defendant Compelled to Produce Employees’ Personal Data in EEOC Dispute: In EEOC v. DolgenCorp LLC d/b/a Dollar General, Illinois District Judge Andrea R. Wood granted the plaintiff’s motion to compel the defendant to produce electronically-stored information (“ESI”) containing personal information of the defendant’s conditional hires and complete versions of documents that the defendant previously produced with portions redacted due to purported lack of relevance. She also ordered the plaintiff to produce documents previously withheld due to privilege for an in camera review.

Oh, Thank Heaven! Court Orders 7-Eleven to Produce Metadata: In Younes, et al. v. 7-Eleven, Inc., New Jersey Magistrate Judge Joel Schneider granted the plaintiffs’ motions to compel the production of metadata for selected groups of documents, denying the defendant’s cross-motions to bar the production of metadata.

You Don’t Get a Second Chance to Make a First Document Production Request: In Allison v. Clos-ette Too, LLC, New York Magistrate Judge James C. Francis, among other motions considered, denied the plaintiff’s motion to compel the defendants’ production of electronically stored information (ESI) in native format after the plaintiff had previously requested (and received) ESI from the defendants without specifying the desired document format.

Court Untangles Form of Production Dispute with Curling Iron Manufacturer: In Wilson v. Conair Corp., California Magistrate Judge Stanley A. Boone granted in part the plaintiff’s motion to compel production, by requiring the defendant to produce further ESI in native format if feasible or TIFF format with the associated metadata, as well as to produce associated metadata for its prior production if it had not already done so.  The court later continued to intervene in discovery disputes between the two parties here.

We’re just getting started!  Tomorrow, we will cover cases related to disputes about discovery, eDiscovery cost reimbursement and issues related to privilege and confidentiality assertions.  Stay tuned!

Want to take a look at cases we covered the previous four years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

The Fourth Generation of eDiscovery Offerings is Upon Us as Well: eDiscovery Trends

If you read this blog regularly, you know that we’re big admirers of Rob Robinson’s Complex Discovery site, from his software and services “mashup” to his running 14+ year list of mergers, acquisitions and investments in the eDiscovery industry.  Now, Rob provides a generational breakdown of eDiscovery technology offerings, giving organizations out there useful information to differentiate offerings in the eDiscovery marketplace.

Last week, we noted that the age of eDiscovery automation is upon us.  This week, Rob undertakes providing “comparison frameworks to help eDiscovery practitioners systematically evaluate the technology in available offerings” in his two part article Considering Fourth Generation eDiscovery Technology Offerings: Two Approaches.  In true Netflix binge watching style, Rob gives you part one and part two at once.  :o)

So, what are the two approaches for comparing eDiscovery offerings?  Rob lays them out at the start, as follows:

“The first approach, based on Geoffrey Moore’s whole product concept, consists of taking into account all elements of a technology offering to help create a complete offering comparison.

The second approach, based on a generational model view of eDiscovery technology, helps individuals compare offerings’ value based on their capability, flexibility, delivery method, and security.”

Rob then goes on to discuss the elements of a complete technology offering, complete with easy to understand graphics that help explain that the complete technology offering should include.  I particularly like Figure 2, which illustrates the Complete Discovery Offering as including Enabling Elements, Complimentary Elements and Complimentary Services (in my opinion, any offering without accompanying services is not a complete solution).

Having discussed the complete technology offering, Rob then provides a generational model of eDiscovery classification, keeping in mind design, integration, and automation (there’s that word again!) attributes in comparing the different generations as follows:

Rob continues by pointing out generational differences in design focus, integration approach and automation approach.  And, all of that is covered in just the first part!  In part two, Rob asks a series of questions (that organizations should be asking) about the technology offering’s capabilities in addressing planning, preservation, preparation, review and sharing requirements as well as its flexibility in integrating and automating eDiscovery tasks, its pricing model and its security approach.  Rob then ties it all together with his Generational Model of eDiscovery Technology Offerings (which we show at the top of this post).

I’ve hit the highlights, but only by reading the article can you get the details.  I recommend that you check it out.

So, what do you think?  What factors do (or did) you consider in selecting your eDiscovery technology solution?  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.

Not Only is the Age of eDiscovery Automation Upon Us, But So is the Age of Cloud-Based eDiscovery: eDiscovery Trends

That may be the first time I’ve ever put the word “eDiscovery” into the blog post title three times… :o)

On Monday, I declared that, in 2016, the age of eDiscovery automation is upon us.  So, who are these “jokers” asking if 2016 is the year of cloud-based eDiscovery?  The nerve!

I’m kidding, of course.  But, in the Bloomberg BNA article 2016 – The Year of Cloud-Based E-Discovery? (written by Daniel Garrie and Yoav M. Griver of Zeichner, Ellman & Krause), the authors note that “cloud-based computing will become more fully enmeshed in the e-discovery marketplace”.

For those of us that think that cloud-based computing already is fully enmeshed in the eDiscovery marketplace, here are some notable comments in the article from these two partners at a 50 attorney firm based in Manhattan:

  • “Some law firms feel that having a hosted solution on-site is more practical than a cloud-based solution. This is no longer true.”
  • “[O]ne thing the emerging players share is that they are finally aligning their cost with what the cost should be, which is not something often seen in the past with current entrenched solutions providers. This means that a firm can more easily find a cloud-based solution that is right for it, while paying a price that is likely less than the cost of maintaining the solution in-house.”
  • “Almost every e-discovery platform in the marketplace today requires some sort of connectivity to the Internet to obtain software updates, be it for the platform or the solution operating the platform. Consequently, law firms that elect to avoid cloud-driven solutions with the intention of offering clients greater security may not actually be providing greater security. Odds are that your security isn’t bulletproof, you don’t have 100 percent systems uptime, and you may not have the necessary amount of staff resources dedicated to IT management.”
  • “In short, cloud-based solutions are now mature enough that law firms should begin to evaluate e-discovery cloud solutions for the potential cost savings to the firm, the increased cyber security over their clients data, and for the decrease to their clients of the exorbitant costs that can often be associated with the discovery process. Each of these is not only a potential benefit to the law firm, but a potential selling point to a client.”

These words advocating cloud-based over on-site solutions within a law firm are not coming from an eDiscovery cloud provider, they are coming from two partners at an actual law firm.  That says a lot.  Of course, I’ve been saying that for over five years now… :o)

In this day of mounting cybersecurity concerns, when it comes to evaluating eDiscovery solution providers, here are some questions to ask the provider regarding how they handle your clients’ data:

  • Where will my data be stored? Will it be on servers dedicated to your platform?  Can you access those servers physically is there is a need to copy large amounts of data to them quickly?  Will the data be stored within the US or could it be stored internationally?
  • What certifications has your data center earned? Is it ISO 27001 compliant?  Is it HIPAA compliant?  Is the data center compliant with any other certifications?
  • Does your data center have an uptime service agreement?
  • What physical security mechanisms are in place?
  • Does your data center provide multiple levels of redundancy?
  • Does the data center have backup power capabilities when main power goes out?

These are just a few of the questions to ask your eDiscovery cloud provider.  It’s important to be as informed as possible in this age of the routine cybersecurity breach before selecting your eDiscovery platform.  You don’t want to be these guys!

So, what do you think?  Do you think that cloud-based solutions for eDiscovery are more secure than in-house solutions?  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.

According to IDC, The Worldwide eDiscovery Market is Already at $10 Billion: eDiscovery Trends

When we covered Rob Robinson’s most recent worldwide eDiscovery software and services “mashup” last year, the total market for both software and services was predicted to reach $10.56 billion by 2019.  According to a newly released study from International Data Corporation (IDC), we’ve surpassed the $10 billion mark already.

In their study released earlier this week, IDC forecasted that worldwide eDiscovery services reached $8.2 billion at the end of 2015. Combined with an eDiscovery software market of just over $2 billion, that would mean that the global eDiscovery market eclipsed the $10 billion threshold last year. IDC also forecasts the total eDiscovery market to grow at a 9.8% compound annual growth rate (CAGR) pushing combined software and services over $14.7 billion by 2019.  How do you like them apples?

Their additional key research findings (as noted in their press release) include:

  • International growth is finally beginning to take off – a bit. The Americas region continues to be (and will continue to be) the largest region; however, both Europe and Asia are seeing an uptick in demand for eDiscovery services. By 2019, Europe is expected to comprise almost 23% of the market and Asia just over 7%.
  • Market consolidation. Service providers and technology solution companies are pairing off at a steady rate. Solution providers continue to buy capabilities as bolt-on functionality for existing products or services in an effort to gain or merely retain market share. This is especially true with regard to analytics companies. Nearly every software and service provider understands that analytics companies pose the largest threat to existing market opportunity.

“eDiscovery services have become an important part of legal and governance workflows for corporations, law firms, and government agencies, globally. The market for services is more than three times the size of the market for eDiscovery software; however, it is important to note that end users want comprehensive, flexible, and secure solutions to meet their ongoing eDiscovery needs, which often means a mix of both software and services,” said Angela Gelnaw, senior research analyst for IDC’s Governance and Security Solutions research program.

The 13 page study, Worldwide eDiscovery Services Forecast 2014 – 2019 presents IDC’s worldwide eDiscovery services market by key market segmentation. A total worldwide forecast and historical sizing are provided, beginning in 2014 and extending through 2019, as well as revenue breakdowns by service category, client type and geographic region. The document also includes an “Advice for Technology Suppliers” section.  You can purchase a copy of the study here.

So, what do you think?  Are you surprised by the growth of the market?  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.

Two Cases Regarding Overtime Pay for Contract Attorneys with Mixed Results: eDiscovery Trends

Last July, we covered a case where a contract review attorney filed a lawsuit demanding overtime pay from law firm Skadden, Arps and legal staffing agency Tower Legal Solutions, alleging that the highly managed review work that he performed should not be considered the practice of law because he was not required to exercise any legal judgment.  That case and one other have concluded (pending appeal) with mixed results.

In the first case, the plaintiff, David Lola, on behalf of himself and all others similarly situated, filed the case as a Fair Labor Standards Act collective action against Skadden, Arps and Tower Legal Staffing.  He alleged that, beginning in April 2012, he worked for the defendants for fifteen months in North Carolina, working 45 to 55 hours per week and was paid $25 per hour for document review.

The defendants moved to dismiss the complaint, arguing (among other things) that Lola was engaged in the practice of law as defined by North Carolina law, and was therefore an exempt employee under FLSA.  The district court granted the motion, but the appellate court vacated the judgment of the district court and remanded the matter for further proceedings, stating that “we find that Lola adequately alleged in his complaint that he failed to exercise any legal judgment in performing his duties for Defendants”.

Last month, the parties settled their lawsuit for a fraction of their “maximum liquidated damages,” according to a letter the plaintiff’s attorney (D. Maimon Kirschenbaum) wrote to the judge.  Tower paid $75,000 according to a settlement agreement that was attached to the letter, filed in U.S. District Court in Manhattan last month.  So, the plaintiffs received at least some compensation in this case.

In the other case, a Federal judge ruled that William Henig, a lawyer doing document review work for Quinn Emanuel Urquhart & Sullivan (and represented by the same plaintiff’s attorney – Kirschenbaum – as the Lola case) wasn’t entitled to overtime pay because he was using legal judgment.

Henig had claimed he did not exercise legal judgment while reviewing about 13,000 documents for about two months in 2012 (making $35 an hour) while working as a temporary contract lawyer for Quinn Emanuel to determine relevance to a discovery request.  In making his ruling, Southern District Judge Ronnie Abrams stated “Not all of [mass document review] is law at its grandest but all of it is the practice of law. Mr. Henig was engaged in that practice.”  We’ll see if Henig chooses to appeal and has any success (like Lola did).  As for plaintiff’s attorney Kirschenbaum, you win some, you lose some… :o)

So, what do you think?  Are document reviewers practicing law?  If not, should they be entitled to overtime pay?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

The Age of eDiscovery Automation May Be Upon Us, But We Still Need Lawyers: eDiscovery Trends

Yesterday, I proclaimed that the “Age of eDiscovery Automation is Upon Us”.  But, does that mean that scores of lawyers need to start looking for work?  Not necessarily.

What a difference (nearly) five years makes.

Back in March 2011, The New York Times published an article entitled Armies of Expensive Lawyers, Replaced by Cheaper Software (covered by us here back then) which discussed how, using ‘artificial intelligence, “e-discovery” software can analyze documents in a fraction of the time for a fraction of the cost’ (the terms “predictive coding” and “technology assisted review” hadn’t even become widely accepted yet).  It discussed whether this development would precipitate a march to the unemployment line for scores of attorneys

Now, in a new article (The End of Lawyers? Not So Fast., written by John Markoff), the Times takes a fresh look at the impact of automation on lawyers and concludes that impact may be less than many in the legal profession fear.

While noting that lawyers have been described as “canaries in the coal mine” in the face of a wave of automation, Markoff’s article observed that there were 149 million people employed in the United States, the most in history, despite fears of a “jobs-pocalypse” by some.  His article cites three studies that illustrate that more automation in the legal industry doesn’t necessarily mean less jobs:

  • A November study prepared by McKinsey & Company suggested that adding technology to the workplace is more likely to transform, rather than eliminate, jobs;
  • A recent paper written by M.I.T. labor economist David Autor, which points out that automation just as frequently complements as replaces labor in the workplace; and
  • Another new study, Can Robots Be Lawyers?, by Dana Remus, a professor at the University of North Carolina School of Law, and Frank S. Levy, an M.I.T. labor economist, which explores which aspects of a lawyer’s job could be automated. The research suggested that, for now, even the most advanced A.I. technology would at best make only modest inroads into the legal profession as many tasks performed by lawyers today.

In essence, we’re talking about task automation (of mostly non-legal tasks) not job automation.  Don’t start updating your resume’ just because we have learned to make your job easier.  You’re welcome, by the way.  :o)

So, what do you think?  Are you concerned about the effect of eDiscovery automation on the legal job market?  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.

What Do YOU Want for Christmas?: eDiscovery Wishes

Last year, I discussed what I want for Christmas (from an eDiscovery standpoint anyway) and we’ll take a look at those eDiscovery Christmas wishes and see how they turned out.  This year, I thought it would be fun to turn the tables and ask (again, from an eDiscovery standpoint): What Do YOU Want for Christmas?

Here are a couple of the things I wished for last year:

Consistency in Awarding Costs for eDiscovery Services: Last year, we discussed how we’ve seen numerous prevailing parties request recovery of costs, including eDiscovery costs and 28 U.S.C. § 1920 (especially §1920(4) is typically reference by judges in making the decisions.  However, it seemed through last year, that we’ve seen as many cases where the recovery costs are denied (or overturned on appeal) as we have where they are approved.  How did we do this year?

We didn’t cover a lot of cases related to recovery of costs this year (four in total: two cases where costs were awarded, one case where some eDiscovery costs were awarded and one case where recovery of eDiscovery costs was denied).  There is another case that we haven’t covered (at least yet) where costs were awarded.  So, not enough data to award anything other than an “incomplete”, but the trend may be tending toward awarding the costs.  We’ll see if that continues in 2016.

Rule 37(e) Won’t Give Producing Parties Too Much Latitude in Failing to Preserve Data: I know what you’re thinking – how can we assess this one given that the >new rules just went into effect on December 1?  Maybe we can’t.  However, would some courts begin to issue rulings that reflected the coming changes to Rule 37(e)?

So far, a cursory review of the cases we covered last year indicates there are still plenty of sanctions being issued.  Out of 24 cases that we covered this year where parties requested sanctions, 15 of them resulted in some sort of sanction being awarded.  Even though at least one party could escape sanctions despite failing to implement a litigation hold and another can manage to avoid a default judgment (twice) despite falsifying produced medical records and, later on, running CCLeaner on her hard drive to delete files, more parties than not received sanctions for their perceived eDiscovery failures in the cases we covered.  So far, so good – let’s see if that changes in 2016.

You can look at my other eDiscovery Christmas wishes from last year here.

But enough about me!  What about you?  What would you like for Christmas – from us?

At the end of every post (and there have been 1,318 published posts by us since our first day on September 20, 2010), I ask the readers to “Please share any comments you might have or if you’d like to know more about a particular topic.”  It’s my way of asking you what you’d like to see us cover in the blog.  After all, we write it for you.

So, what would you like to see us cover in the coming year?  More posts about Technology Assisted Review?  Information Governance?  More coverage of industry surveys and studies?  More thought leader interviews?  Guest posts?  After flying solo on the blog for over a year now (and, boy, are my arms tired!), I could go for that one!  More coverage of case law?  Though, having devoted 89 posts this year to eDiscovery case law. I’m not sure we can top that one… :o)

Regardless, we want to hear from you.  Please tell us what you want for gift for Christmas – from eDiscovery Daily!  We will do our best to deliver in this coming year and try not to leave you with a lump of coal (unless we cover a lawsuit involving coal mining!)

So, what do you think?  What do you want for Christmas gifts from eDiscovery Daily?  Maybe gift baskets for Christmas is the way to go? Please share any comments you might have or if you’d like to know more about a particular topic.  Seriously.  I really mean it.

eDiscovery Daily is taking a break for the holidays (so I can rest my tired arms) and will return on Monday, January 4.

Happy Holidays from CloudNine Discovery!

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 Default Judgment Sanctions for Defendant’s Multiple Discovery Violations: eDiscovery Case Law

In Long Bay Management Co., Inc. et. al. v. HAESE, LLC et. al., No. 14-P-991 (Mass. App. Ct., Nov. 17, 2015), the Appeals Court of Massachusetts found that the default judge had not abused her discretion in ordering sanctions and assessing damages and ordered that the plaintiffs could submit a petition for appellate attorneys’ fees incurred in responding to the appeal.

In this case, the plaintiffs sued their former legal counsel for overbilling after a former associate of the counsel firm notified the plaintiffs that his billing records had been altered without his knowledge.  The default judge found that throughout the proceedings, the defendants repeatedly abused the discovery process in various ways, including inappropriate subpoena of individuals for deposition who were not “relevant to the subject matter involved in the pending action,” seeking information not “reasonably calculated to lead to the discovery of admissible evidence.”

The defendants were also found to have “repeatedly stymied” the plaintiff’s efforts to gather discoverable information, by failing to respond to the plaintiff’s discovery requests and never producing the underlying metadata of the billing records despite court orders, using delay tactics and claiming several excuses such as privilege, the inability to separate the metadata from other client files, and missing multiple hearing dates without excuse.  In addition to the numerous discovery violations, the default judge determined that there was also strong evidence, albeit circumstantial, establishing spoliation.

On appeal, the defendant argued that the default judge should have allowed both his motion to stay and motion for reconsideration because the appearance of his new counsel required more time to brief the court why spoliation did not occur, that the damages judge erred in holding the assessment of damages hearing despite becoming aware that the plaintiff had litigated the case under a name that was not the real party in interest and that the default judge erred in preventing him from introducing specific expert testimony.  In response to each argument, the appeals court found that the default and damages judges did not abuse their discretion in ordering sanctions and assessing damages.  The appeals court also ordered that the plaintiffs could submit a petition for appellate attorneys’ fees incurred in responding to the appeal.

So, what do you think?  Did the defendants’ actions warrant a default judgment against them?  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.

Court Denies Plaintiff’s Motion to Compel the Defendant to Assist with Access to its Data: eDiscovery Case Law

In SFP Works, LLC v. Buffalo Armory, LLC, No. 14-13575 (E.D. Mich., Nov. 19, 2015), Michigan Chief District Judge Gerald E. Rosen, agreeing with the defendant that the plaintiff’s motion was untimely, and that Plaintiff “unreasonably declined” several options proposed by the defendant for accessing the data that was produced to it by the defendant, denied the plaintiff’s motion to compel access to operational data.

Case Background

In this patent infringement case, the defendant produced data to the plaintiff in February 2015, acknowledging in an accompanying letter that it was producing its data files “in native format, the way they are kept in the ordinary course of business,” and that the plaintiff would need to obtain specialized third-party software in order to view the data in these files.  Over a month later, the sent a letter to the defendant, indicating that a license for the software needed to view the data files (along with the training and technical support) would cost approximately $6,000 and (ii) requested the defendant to provide hard-copy printouts of the pertinent data, as it had already done for certain runs of its accused process.  In response, the defendant offered to provide printouts if the plaintiff covered the costs for those printouts and also provided the plaintiff with a copy of free software it had obtained from a third-party vendor for viewing the data files it had produced back in February.  Problem solved, right?  Not so fast.

Unfortunately, the plaintiff continued to encounter difficulties accessing the data and suggested that the data provided by the defendant was “corrupt in some way,” or that the viewing software obtained from the third-party vendor was “not suitable” for gaining access to this data.  The third-party vendor indicated that the plaintiff had used up its free technical support, and indicated that it would have to spend several hundred dollars or more for additional support.

In June, the defendant proposed three solution alternatives to the plaintiff: buy a license to the full software package that the defendant had used to generate the underlying data, pay the “nominal cost” sought by the third-party vendor to for continued software troubleshooting or identify up to ten dates for which the defendant could provide hard-copy printouts of data generated through its use of the accused process.  The plaintiff rejected all three alternatives, so, on June 10, the defendant responded, stating that “[t]here is simply nothing more we can do and nothing more the Federal Rules require us to do.”  Twenty days later, the plaintiff filed its motion to compel access to operational data.

Judge’s Ruling

With regard to the timeliness of the motion, Judge Rosen stated:

“As this lengthy procedural history makes clear, the present discovery dispute ripened, at the very latest, on June 10, 2015. By that date, Plaintiff had expressly rejected each of Defendant’s proposals for resolving this dispute. In addition, Plaintiff was fully aware by that date (i) that it remained unable to review and analyze the data produced by Defendant, and (ii) that Defendant did not intend to take any further steps to assist Plaintiff in overcoming this technical hurdle. Yet, even assuming that the present dispute were deemed to have arisen on June 10, rather than in late February when Defendant produced the data giving rise to this dispute, Plaintiff nonetheless failed to seek the Court’s intervention in this dispute within fourteen days after Defendant explicitly advised Plaintiff on June 10 that it would take no further action to assist Plaintiff in gaining access to the data it had previously provided. Instead, Plaintiff first brought this dispute to the Court’s attention twenty days later, when it filed a June 30, 2015 motion to compel Defendant to implement one or more measures designed to ensure Plaintiff’s access to Defendant’s data.  Under the terms of the Court’s scheduling order, this motion was filed too late to secure the Court’s intervention in the parties’ dispute.”

Judge Rosen also rejected the plaintiff’s argument that the matter before the court was not a discovery dispute and noted that the plaintiff requested that it be granted access to the defendant’s own software at its facility in Buffalo, New York to view the data and the defendant offered that solution the day after the plaintiff filed its motion, making the motion unnecessary.  As a result, Judge Rosen denied the plaintiff’s motion.

So, what do you think?  Should the defendant have been required to do more to make the data accessible?  Or did it do enough?  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.