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Electronic Discovery

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.

Interview with Pete Feinberg of Consilio Regarding the Huron Legal Acquisition: eDiscovery Trends

Consolidation within the eDiscovery industry continues.  Last week, Consilio announced a “definitive agreement” to acquire the Huron Legal Practice of Huron Consulting Group – their third acquisition in the past four months.  Yesterday, I interviewed Pete Feinberg, Senior Vice President, Products & Marketing at Consilio about the Huron Legal acquisition.

Huron Legal is one of Huron Consulting Group’s four operating segments and offers a variety of services to law firms and corporate law departments including eDiscovery, document review, information governance and compliance, law department management and legal analytics.  Huron Legal has operations primarily in the U.S., including Chicago, Charlotte, Raleigh, Miramar, New York, Washington, D.C., San Francisco and Houston, as well as international locations.  Not to mention, a regular contributor to this blog… :o)

I asked Feinberg about the acquisition and why Huron Legal made sense as an acquisition target for the company.

“Huron Legal has really done a great job building a dominant position around document review and eDiscovery services, particularly in the US market, which was very attractive to us”, said Feinberg.  “Consilio has been strong in international eDiscovery and it was important for us to solidify a foothold here in the US.  Frankly, we couldn’t think of a better partner to do so than with Huron Legal, who has been providing great services to their clients for almost ten years now.”

“Beyond that, as we got to know the Huron Legal team better, we saw that there are more than a hundred consultants within the Huron Legal business unit focused in a variety of practice areas, including information governance, compliance, law department management and legal analytics.  Those practice areas are very attractive to Consilio as they are areas in which we have not been as strong historically.  But, we understand where the market is moving and, through engaging with our clients, we understand some of the added value that those consulting services and strategic relationships can afford.  Also, though both Consilio and Huron Legal serve very similar clients in terms of characteristic – large, multinational corporations within particular vertical sectors such as financial services, life sciences, pharma and technology and global presence law firms – fewer than 5% of our clients are shared between our two organizations.  So, it is a highly complementary transaction from that perspective.”

With regard to what the acquisition will mean for current clients of Huron Legal, Feinberg made it clear that there would be “first and foremost, no service interruption.  The Huron Legal management team is coming over almost in totality to Consilio and joining Consilio’s leadership team.  We don’t look at this as an acquisition, we look at this as more of a merger of two complementary businesses.  Each of our companies has certain capabilities that are stronger than the other, so the key for us is to find the strengths within each of the two businesses and leverage those into the combined entity and we expect to work with the Huron Legal management team to help build a larger, more capable entity going forward.  We also don’t want to rush this transition, we want to be very thoughtful and purposeful about it to avoid creating any kind of tension for either legacy client base, or employee base.  That said, we see considerable benefits for the clients over the mid-term and long term horizons, particularly by expanding the services for those clients who have operations around the world, particularly in continental Europe and Asia Pacific.”

Huron Legal is not Consilio’s only recent acquisition, they also acquired predictive coding provider Backstop back in September and, only days ago, acquired Proven Legal Technologies as well.  Feinberg said that a change in private equity owners was a key factor in the recent acquisitions.  “We felt that it was important to have a private equity owner that was aligned in our vision that there is going to be consolidation in the eDiscovery space.  We were very fortunate to find a partner like Shamrock Capital Advisors (who acquired controlling interest in Consilio earlier this year) who had the same strategic vision that we did.  We’ve been able to work with Shamrock to take a look at businesses that fit our business model and client base, such as Backstop, with which we’ve had great experiences.  Like Huron Legal in the US market, Proven Legal Technologies has a great bench of resources and experience in the UK market and experience in Relativity, which we had not hosted previously.  With the Huron Legal acquisition, which was somewhat coincidental in terms of timing, we were able to add a bench of even greater scale and experience with Relativity here in the US.”

Thanks, Pete, for the interview!

So, what do you think? Is consolidation within the eDiscovery industry beginning to happen more quickly? Please share any comments you might have or if you’d like to know more about a particular topic.

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

The Sedona Conference Provides Guidance for Protection of Privileged ESI: eDiscovery Best Practices

As volumes of electronically stored information (ESI) stored in the world doubles every 1.2 years, it becomes more challenging to identify the ESI that is subject to a claim of attorney-client privilege or work product protection and log and exclude that ESI from production.  Federal Rule of Evidence 502 was intended to address waiver of such privilege claims and reduce the discovery costs, but many attorneys and judges don’t realize the protections the rule offers.  Now, The Sedona Conference® has issued a new final commentary to “breathe some needed life” into the understanding and use of Rule 502.

Last week, Working Group 1 of The Sedona Conference, announced the final release of The Sedona Conference Commentary on Protection of Privileged ESI, which reflects changes made after release of the public comment version in November 2014.

The Commentary attempts to “breathe some needed life” into the understanding and use of Rule 502 by:

  1. Reminding counsel of the basics of the law on privilege in the context of modern document productions;
  2. Encouraging parties, lawyers, and the courts to consider employing Rule 502(d)-type orders in every complex civil matter;
  3. Articulating a “safe harbor” presumption that protects parties from claims of waiver in connection with the inadvertent production of privileged materials, provided that there is adherence to certain basic best practices in the context of ESI privilege review;
  4. Encouraging cooperation among litigants to lower the cost and burden of identifying privileged information; and
  5. Identifying protocols, processes, tools, and techniques that can be used to limit the costs associated with identifying and logging privileged material, and avoiding or resolving disputes relating to the assertion of privileges.

The 64 page Commentary covers the four Principles on Protection of Privileged ESI, which are as follows:

  • Principle 1: Parties and their counsel should undertake to understand the law of privilege and its appropriate application in the context of electronically stored information.
  • Principle 2: Parties, counsel, and courts should make use of Federal Rule of Evidence 502(d) and its state analogues.
  • Principle 3: Parties and their counsel should follow reasonable procedures to avoid the inadvertent production of privileged information.
  • Principle 4: Parties and their counsel should make use of protocols, processes, tools, and technologies to reduce the costs and burdens associated with the identification, logging, and dispute resolution relating to the assertion of privilege.

The Commentary also provides appendices that include an Explanatory Note on Evidence Rule 502 Prepared by the Judicial Conference Advisory Committee on Evidence Rules, two model Rule 502(d) orders (including the one we previously discussed here from Hon. Andrew J. Peck (S.D.N.Y.)) and state law analogues of Federal Rule 502 adopted by several states.

You can download the Commentary here.  Consider it an early Christmas present from The Sedona Conference!

So, what do you think? Do you use 502(d) orders in your cases?  If not, why not?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. 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.

Most Firms Are More Concerned About Security Threats Than They Were Just Two Years Ago: eDiscovery Trends

If you’ve been paying attention to the headlines at all this year, it should come as no surprise that most firms are more concerned about security threats than they were just two years ago.  But, what percentage of firms and what is their biggest security concern?

The LegalTech News article, By the Numbers: Cybersecurity in the 2015 Am Law-LTN Tech Survey, provides some interesting key stats on firms’ handling of cybersecurity and their top concerns.  Here are some key numbers:

  • 77% of firms are more concerned about security threats than they were just two years ago: In addition, the majority of respondents to the survey indicated that their security concerns have increased over the past year, with none indicating a decrease in concern over the past year;
  • 25% of respondents identified phishing as their perceived biggest security threat to the firm: In addition to the practice where hackers pose as legitimate sites to trick people into providing their credentials, 23% of respondents identified “outsiders trying to break into the data network as their biggest threat, for a total of 48% of respondents where their biggest concern was unauthorized outsider access. 27% of respondents identified a lack of knowledge about their security status as the biggest threat, either a lack of knowledge if data has been compromised (16%) or a lack of knowledge when the firm is under attack (11%).
  • 83% of responding firms have implemented mobile device management software to protect data on BYOD devices: That’s probably a big reason why only 5% of respondents identified “mobile” as their biggest security threat.
  • 31% of firms plan to migrate to Windows 10 in the next year: As the survey indicates, support for older operating systems can dwindle, resulting in a greater possibility of security exploits in those older operating systems (though it’s my experience that the newer systems can sometimes be as vulnerable).

So, what do you think? What do you consider to be the biggest security threat to your firm? 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 Request for In Camera Review of Defendants’ Privileged Emails: eDiscovery Case Law

In Armouth International, Inc. v. Dollar General Corp. et. al., No. 14-0567 (M.D. Tenn., November 2, 2015), 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.

Case Background

In this dispute between a discount retailer and one of its suppliers over failure to pay invoices and cancelled orders, the defendants withheld certain email communications and redacted other emails on the basis of attorney-client privilege.  The disputed emails related to a decision made by the defendants’ Assistant General Counsel (AGC) to release a hold (that was originally placed by the defendants because the merchandise failed to conform to the labeling standards set forth by the Federal Trade Commission) on merchandise that was to be distributed to the defendants’ retail stores for sale.  The defendant contended that the AGC’s decision was purely legal and involved, at most, minor business considerations.

Citing the AGC’s role as “head of the Compliance Department” and “supervisor to the Senior Director of Global Sourcing”, the plaintiff argued that the AGC was acting with his “business hat,” as opposed to his “legal hat,” and that the emails withheld and redacted by the defendant involving the AGC were therefore not subject to the attorney-client privilege.  As a result, the plaintiff filed an expedited motion to compel, requesting that the defendants be required to produce all 52 of the communications withheld or redacted by the defendant for an in camera review by the Court to determine which emails are protected by the privilege.

Judge’s Ruling

Referencing the defendant’s contention that the decision to release the hold was made by the AGC precisely because it required the legal opinion of an attorney, Judge Holmes stated:

“The Court is not persuaded that this series of events, nor Armouth’s unsupported speculation, forms a ‘factual basis adequate to support a good faith belief by a reasonable person’ that an in camera review of the emails contained in Dollar General’s privilege log would reveal communications involving business advice unprotected by the attorney-client privilege. Armouth is unwilling to believe that Mr. Stephenson was acting in a legal capacity when the decision was made to release the hold on its merchandise, despite the fact that the hold was originally implemented due to legal considerations, i.e. the failure of Armouth’s merchandise to comply with federal law with respect to labeling standards.”

Continuing, Judge Holmes stated: “The Court agrees with Dollar General that Armouth’s blanket request for review of the entire privilege log suggests a ‘fishing expedition,’ as opposed to a specific request to discover relevant information. The Court also notes that granting Armouth’s motion, which broadly requests a review of all of Dollar General’s emails withheld based on attorney-client privilege, would open the floodgates and allow any party to demand an in camera review of the opposing party’s attorney-client communications so long as the former expressed an unfounded suspicion that counsel for the latter had misrepresented the basis for the privilege claim. For the these reasons, Armouth’s motion is DENIED.”

So, what do you think?  Should the court have allowed for the in camera review?  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.