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Electronic Discovery

It Was Only a Matter of Time Before The Sedona Conference Weighed in on Privacy and Security: eDiscovery Best Practices

When we started this blog over five years ago, privacy and security wasn’t the big topic it is today.  Now, there seems to be a story about a data breach practically every day and privacy is a big issue, especially internationally.  Thankfully, The Sedona Conference® has created a guide to help with this growing issue.

The Sedona Conference Working Group on Electronic Document Retention and Production (WG1) has just rolled out the final release of its new Commentary on Privacy and Information Security: Principles and Guidelines for Lawyers, Law Firms, and Other Legal Service Providers.  As the name implies, it’s a guide for all of us!  I say “final release” because they already rolled out the public comment version back in July and this new guide reflects changes resulting from comments received.  The original public comment version of the Commentary was published in July after more than two years of dialogue, review, and revision, including discussion at several working group meetings.

The Commentary is divided into several sections, including:

  • Section I: A brief Introduction and statement of Principles;
  • Section II: Identifies some of the major sources of a provider’s duty to protect private and confidential information;
  • Section III: Describes a process by which legal service providers may conduct thorough security risk assessments, taking into account the information they possess, the vulnerability of that information to unauthorized disclosures, breaches, loss, or theft, and the way in which each provider may mitigate those threats by adopting a structured or layered approach to protect private and confidential information; and
  • Section IV: Delves into various policies and practices that can address privacy and information security, setting forth processes that can be scaled to the needs and circumstances of an individual legal service provider.

The guide also includes appendices that discuss privacy and security in the Health Care and Financial Services industries.

Of course, the heart of any Sedona Conference guide is its principles – here are the seven principles stated in this guide:

  • Principle 1: Legal service providers should develop and maintain appropriate knowledge of applicable legal authority including statutes, regulations, rules, and contractual obligations in order to identify, protect, and secure private and confidential information.
  • Principle 2: Legal service providers should periodically conduct a risk assessment of information within their possession, custody, or control that considers its sensitivity, vulnerability, and the harm that would result from its loss or disclosure.
  • Principle 3: After completing a risk assessment, legal service providers should develop and implement reasonable and appropriate policies and practices to mitigate the risks identified in the risk assessment.
  • Principle 4: Legal service providers’ policies and practices should address privacy and security in reasonably foreseeable circumstances, and reasonably anticipate the possibility of an unauthorized disclosure, breach, loss, or theft of private or confidential information.
  • Principle 5: Legal service providers’ privacy and information security policies and practices should apply to, and include, regular training for their officers, managers, employees, and relevant contractors.
  • Principle 6: Legal service providers should monitor their practices for compliance with privacy and security policies.
  • Principle 7: Legal service providers should periodically reassess risks and update their privacy and information security policies and practices to address changing circumstances.

Hopefully, these principles will influence providers of legal services to improve their own privacy and security practices.  The PDF guide can be downloaded here and, as always, it’s free!

So, what do you think?  Do you plan to adopt these principles and guidelines for managing security and privacy within your organization?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Less Than Half the States Still Have an Ethics Opinion Regarding Lawyer Cloud Usage: eDiscovery Best Practices

From time to time, we like to take a look back at stories we’ve covered in the past and provide an update.  About a year and a half ago, we published a blog post regarding the states that have published ethics opinions for lawyers regarding using and storing client data in the cloud.  At that time, only 14 states (less than one third) had published an ethics opinion regarding lawyer cloud usage.  Eighteen months later, only a few more states have done so.

The Legal Technology Resource Center (LTRC) of the American Bar Association’s (ABA) web site has a page titled Cloud Ethics Opinions Around the U.S., where the ABA provides an interactive map of the states (see the image of it above), with the states that have published ethics opinions shown in blue.  Oddly enough, Wisconsin is not shown in blue, though they appear to have published an ethics opinion earlier this year.  On the actual site, you can either click on the state to scroll down to it or manually scroll down to the state by name alphabetically (the list still has “Nevada” after “New Hampshire”, “New Jersey” and “New York” for some reason).  Anyway, according to the ABA, here are the states that have published ethics opinions – with links to each state’s opinion (note that several of the links on the ABA site are not working, so we found the correct links and are providing them below):

If you counted, we’re up to 20 total states with opinions – less than 40% of the total state jurisdictions (when you include DC).

As noted previously, the ABA site provides two tabs below the interactive map to highlight the opinions:

  • Quick Reference tab that identifies whether cloud usage for client data is permitted (so far, all states say “Yes”), the standard for use (currently all states with opinions enforce a reasonable care standard) and a bullet point list of specific requirements or recommendations;
  • Opinion Summaries tab that provides a brief summary for each of the opinions.

Hopefully, the next time we check, a majority of the states will have published their own opinions by then.

So, what do you think? Are you surprised that more states don’t have published cloud ethics opinions?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Defendant’s Wife Ordered to Turn Over iPhone for Examination: eDiscovery Case Law

In Brown Jordan International, Inc. et. al. v. Carmicle et. al., Consolidated Case No. 15-00037 (W.D.K.Y. Oct. 19, 2015), 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.

Case Background

In this employment dispute that spawned a counter-suit which was eventually combined into a single consolidated case, the defendant produced his electronic devices and electronic storage for forensic examination. Based upon the review of those devices and sites, the plaintiffs came to believe that the iPhone of the wife of the defendant may contain information relating to the claims in the action. As a result, the plaintiffs issued a subpoena to the the wife of the defendant, requesting her iPhone for a forensic exam.  She objected to the production of her iPhone and refused to produce it.  So, after the parties were unable to come to an agreement regarding the forensic review of her iPhone, the plaintiffs filed an Expedited Motion to Compel.

Judge’s Ruling

With regard to the relevancy of her iPhone, Judge Stivers, noting that the forensic examination report of the defendant’s laptop found “an Apple iTunes backup file of Rashna’s iPhone, which contains some of the original Brown Jordan International screenshots”, stated “[i]n this case, the information sought from Rashna’s iPhone appears to be relevant to the claims asserted in the action and good cause exists.”

Judge Stivers then stated that “[t]he burden then shifts to Rashna ‘to establish that the material either does not come within the scope of relevance or is of such marginal relevance that the potential harm resulting from production outweighs the presumption in favor of broad disclosure’”, noting that it was a heavy burden.  The defendant’s wife made the following arguments, each of which was addressed by Judge Stivers:

  • The information does not exist on her iPhone: Judge Stivers rejected that argument, indicating that “it is impossible for the Brown Jordan Parties to refute it without a forensic examination of her iPhone, and issues of spoliation of evidence have been raised in this matter”;
  • The plaintiffs already have that information: Judge Stivers indicated that he was “unpersuaded by this argument”, “in light of the potential spoliation issues and the forensic report”;
  • Producing the iPhone would be inconvenient: Judge Stivers noted that the plaintiffs indicated that “the forensic examination can occur in as little as four hours and can be completed overnight”;
  • She won’t have sufficient to review the results to assert any applicable privileges: Judge Stivers agreed to “modify the review period” to give her more time.

With her objections addressed, Judge Stivers ordered the wife of the defendant to produce her iPhone to be forensically examined and gave her nine days to complete the review of the documents collected from her iPhone.

So, what do you think?  Should she have been compelled to produce the iPhone?  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.

Can You Predict the Future?: eDiscovery Trends

If you can, great!  Send me an email and tell me what tomorrow’s blog post will be about.  :o)  If not, don’t worry (I can’t either).  But, thanks to Rob Robinson, you’ve at least got a head start in predicting when the eDiscovery events for next year will occur.

In the category of “why didn’t someone do this sooner”, Rob’s site, Complex Discovery, posted a short list of planned eDiscovery-related industry events for 2016.  As Rob notes, the list is non-comprehensive and is based on his research and tracking.  And, I’m sure it will be supplemented as more events are announced (for example, the EDRM annual and mid-year meetings haven’t been announced yet).

Nonetheless, Rob’s event list is a great resource for 2016 planning, showing the name, start and end dates and location of the event, along with a hyperlink to the URL site for the event (obviously, the curriculum for many of the events hasn’t been flushed out yet).  Still, it’s great to know dates for LegalTech New York (the first event on the list) through the ACEDS conference in April to the last events in October (such as the ACC Annual Meeting).  For those of us who are used to having to look up each event separately to determine which ones we will be able to attend, it’s great to have them listed all in one place and predict at least some of the future for next year.  Thanks, Rob!

So, what do you think?  Do you have one or more favorite eDiscovery events that you attend every year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Even Lawyers Need Love Sometimes: eDiscovery Trends

If you work in the legal industry, you’ve probably heard this joke.  What do you call 5,000 lawyers at the bottom of the ocean?  A good start.  Get it?  It’s easy to joke about hating lawyers and some of us may not be joking.  But, even lawyers need love sometimes.  Believe it or not, today is National Love Your Lawyer Day.

As noted in this press release, National Love Your Lawyer Day was established in 2001 by the American Lawyers Public Image Association (ALPIA).  It’s a day in which lawyers and judges are celebrated for all the good they do, often thanklessly. On this day, the public is asked to let their favorite legal eagles know how much they love and appreciate them. “Call your attorney and say Happy Lawyer’s Day! or thanks for a doing a great job, or even send a gift, flowers or a card,” says Nader Anise, Executive Director of ALPIA. “Lawyers are always painted as the bad guy, even if they pull off some crazy Houdini-esque maneuvers to help their clients. We’re hoping this day will spark public interest in commending lawyers rather than condemning them.”  She didn’t say write a blog post about them, but that’s how I show my love.  :o)

And don’t even think about bad-mouthing lawyers on Love Your Lawyer Day – that is, unless you’re holding a wad of cash. Not only is lawyer bashing a big no-no and considered in poor taste, but anyone unable to bridle his tongue from verbally jabbing lawyers (late-night talk show hosts take note) is being asked to donate a $20 “fine” per joke to the charity of his choice.  Hope that joke in the intro of this post doesn’t count, I’m tapped out.  :o(

Anyway, those of us in the eDiscovery industry have been known to grumble from time to time about how the expertise of lawyers in eDiscovery continues to be lacking, despite ethics guidance from sources such as American Bar Association (ABA) Model Rule 1.1, which discusses competent representation to a client and includes a comment (Comment 8) which states that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”.  And, states are beginning to provide opinions regarding an attorney’s ethical duties in the handling of discovery of electronically stored information, as California did recently (Proposed Formal Opinion Interim No. 11-0004 has now become Formal Opinion No. 2015-193).

At CloudNine, we love lawyers every day, not just today.  To do our part in helping lawyers get up to speed on eDiscovery, we have, of course, provided this blog each day for over five years now to help educate lawyers (as well as others in our profession).  We have also begun offering a one-hour session (CLE approved in Texas) titled What Every Attorney Should Know about eDiscovery in 2015 (pretty soon, we’ll have to update the title).  We cover key terms to know, the EDRM model, Federal and State rules and resources, ethics considerations (the course includes a .25 ethics credit) and we cover key cases important to the evolution of electronic discovery.

We have conducted this CLE session for a few firms in the past few months and it has been very well received.  If your firm might be interested in this presentation (especially if you’re in the Houston area or somewhere in Texas), drop me a line at daustin@cloudnincloudnine.comm.  We’ll be happy to show you our love!

So, what do you think?  Are you looking for some CLE credit opportunities?  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.

Calling First 30(b)(6) Witness a “Waste of Time”, Court Orders a Second Deposition: eDiscovery Case Law

In Rembert v. Cheverko et. al., No. 12-9196 (S.D.N.Y., Oct. 9, 2015), 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.

Case Background

In this civil suit filed by an inmate in the Westchester County Department of Corrections system over failure to properly treat a fractured arm, the plaintiff sought documents including any email communications between prison staff about the plaintiff.  The defendants failed to respond to that request for over three months, at which time they simply stated that they were not in possession of any such communications.  At a conference two days later, when pressed, defendants’ counsel conceded that defendants had not performed any search for emails and committed to expeditiously search for electronic documents for their witnesses, but still failed to provide any additional emails, despite the fact that five defendants’ witnesses confirmed that they used email to communicate about their patients and that responsive documents about the plaintiff should exist.

The plaintiff issued a motion to compel, to which defense counsel responded by calling the allegations regarding email collection “reckless and, frankly, scurrilous.”  Nonetheless, counsel for defendants ultimately made a small production of several emails to plaintiff’s counsel just before a court conference in July, which the plaintiff’s counsel determined to be incomplete.  The Court then outlined several possible ways of proceeding to resolve this email issue including a 30(b)(6) deposition.  The defendant’s motion to strike the 30(b)(6) deposition was denied and the deposition proceeded on September 25.

Judge’s Ruling

With regard to the 30(b)(6) deposition that was conducted, Judge Forrest noted “it is clear from the transcript that the witness was not prepared to deal with even the most basic topics set forth in the notice. It was a pure waste of time.”  Continuing, she stated:

“The designated witness, Peter Gavin, the Director of Health Information, testified that he had met with defense counsel once, for “an hour, I think.”…This is in contrast to defense counsel’s representation in his response to this motion that he prepared Mr. Gavin over the course of two days….Someone’s recollection is incorrect. Mr. Gavin did not know the version of the email platform used, whether Correct Care maintains the emails on its own server or works with a third party to do that, whether the storage is cloud-based, whether there are any size constraints on the amount of email data that a user can retain, what deletion practices were employed automatically, periodically or specifically, he was unfamiliar with ways of archiving emails other than his own personal practice, whether emails and documents were stored on the hard drive of a user’s computer or on a network server, whether emails sent or received through cell-phones would go through a web-mail client, whether Correct Care backs-up email, etc.”

As a result, Judge Forrest granted the plaintiff’s motion, stating that “[a] properly prepared 30(b)(6) witness shall be made available not later than October 23, 2015. Counsel shall confer on the appropriate location to take the deposition. As plaintiff should not have to have made this motion given the Court’s prior rulings and warnings, defendants shall pay the costs plaintiff has incurred in bringing this motion including: reasonable attorney’s fees for attending the useless deposition of Mr. Gavin and bringing this motion, and court reporter fees for the deposition of Mr. Gavin. Such costs shall be paid to the Patterson Belknap firm within 30 days of this Order. Defendant shall also provide plaintiff and the Court with copies of any document retention/preservation notices issued in connection with this case and the recipients of such hold notice. Such production shall occur not later than October 16, 2015.”

So, what do you think?  Have you ever been involved in a case where a second 30(b)(6) witness had to be produced?  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.

Mo’ Data, Mo’ Data, Mo’ Data from EDRM: eDiscovery Trends

It didn’t take long for EDRM to deliver on its promise of an advanced data set.  Back in August, EDRM announced the release of the first of its “Micro Datasets”, designed for eDiscovery data testing and process validation.  The first one was small, this new data set is MUCH bigger.

The initial August offering was a 136.9 MB zip file containing the latest versions of everything from Microsoft Office and Adobe Acrobat files to image files containing EDRM specific work product files and data from public websites to uncommon formats including .mbox email storage files and .gz archive files.  On Monday, EDRM announced the release of a new 5.7 GB Micro Dataset. As before, this new EDRM dataset was assembled to meet eDiscovery data testing and process validation needs of software and tool providers, litigation support organizations, law firms and educational organizations and is sourced from publicly available data and free from copyright restrictions.

Designed to support exception handling exercises and advanced testing, the files in the new dataset have various levels of corruption, and the dataset contains a duplicate set of files that are encrypted.  The file types in the set include:

  • A variety of.csv files
  • Websites and web pages
  • Adobe Acrobat files
  • Graphic files and photographs
  • Public census data
  • Microsoft Office files
  • Audio files
  • 4 email boxes with shared correspondence, threads and attachments
  • Multiple Encase .e01 files containing data from a phone and another data source

This new EDRM Micro Dataset is available exclusively to EDRM members. Current EDRM members have been notified by email with instructions for file downloading (I just downloaded my copy yesterday and look forward to delving into it this week).  So, if you’re interested in joining EDRM, there has never been a better time!  Organizations and individuals interested in EDRM membership will find information at https://www.edrm.net/join/.

“The EDRM Dataset team has done outstanding work in advancing the industry with the development of advanced datasets that better reflect the types of data anomalies and challenges faced by e-discovery professionals today,” said George Socha, co-founder of EDRM. “EDRM members will benefit greatly from their work, in addition to the education, guidelines and latest in industry best practices provided to members.”

Five years after the Enron data set was converted to Outlook by the EDRM Data Set team (in November of 2010) we’re beginning to have some new dataset options.  We may actually someday see an eDiscovery product demo without Enron data!

So, what do you think?  Are you looking forward to checking out the new data set?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Here’s a Look at How and Where Legal Departments are Utilizing Data Analytics: eDiscovery Trends

Let’s face it, data analytics are everywhere.  It’s no longer just Netflix suggesting movie choices based on previously watched movies or Amazon suggesting your next purchase, all companies are using data analytics to drive their business processes in various departments, including their legal departments.  But how are in-house legal departments actually using data analytics capabilities?  Here’s a new study that offers some answers.

The Coalition of Technology Resources for Lawyers (CTRL), an industry education and research group committed to the development of practical and proactive guidance for lawyers as they attempt to leverage various technologies in practice, commissioned the Information Governance Initiative (IGI) to conduct a survey regarding in-house legal departments’ use of data analytics across six use cases.  Those use cases are: 1) eDiscovery/Other Investigations, 2) Legal Matter Management, Billing, & Budgeting, 3) Information Governance, 4) Outcome Analysis or Risk Assessment, 5) Contract Review and 6) Selection of Outside Counsel. Data Analytics in the Legal Community 2015-2016 Trends is the resulting report prepared by CTRL based on that study.

While the study doesn’t identify the number of participants, it does note that a majority of survey respondents were attorneys (around two-thirds), with most holding senior-level positions. Around one third of respondents were non-attorneys, including IT, analytics, and other professionals within or providing support for the inhouse legal team.

Perhaps not surprisingly, eDiscovery/Other Investigations was the use case with the highest percentage of utilization of data analytics – it was the only use case for which a majority of legal departments (56%) reported that they were using data analytics.  Legal departments reported that their top three uses for data analytics in this area were culling and early case assessment (at 72.4% of respondents using analytics for eDiscovery each) and relevancy review (71.1%) – these were the only uses with over 70% of respondents. In addition to that, 71% of legal departments indicated that their spending on analytics for eDiscovery would increase or stay the same next year.

As for Information Governance (IG), it was the third most common use case with almost one third of legal departments using analytics.  Respondents using data analytics for IG indicated that it was used for “facilitate defensible disposition” and “facilitate compliance with records policies or other requirements” the most (77.4% of respondents using analytics for IG each).

The free eight page report is available here.

So, what do you think?  Does your legal department use data analytics?  If so, for what?  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 Agrees to Allow Defendant to Use Search Terms to Identify ESI to Preserve: eDiscovery Case Law

In You v. Japan, No. C 15-03257 WHA (N.D. Cal. Sept. 16, 2015), California District Judge William Alsup granted the defendant’s motion to limit preservation of articles to those that contain one of several relevant search terms, as long as the defendant’s proposal was amended to include one additional term requested by the plaintiffs.

Case Background

In this putative personal injury class action involving claims against numerous defendants for allegedly contributing to sexual violence against them when they were kept as “comfort women” for members of the Japanese military during World War II, one defendant, a newspaper business, sought permission to preserve documents by alternative means to the Court’s required procedures.

This defendant had already retained an electronic, searchable database of all of its articles back to 1992 and was also retaining the versions of articles that are placed in a proprietary application used for laying out each edition of the newspaper for 90 days. However, the defendant contended that retention for longer than that could slow down the system or cause it to crash, indicating that installing a new storage system would cost $18 million and could take up to eight months.  As a result, the defendant filed an administrative motion for miscellaneous relief, seeking permission to employ an alternative method of preserving the documents as used in the proprietary application, namely by preserving articles only if they contain one of four relevant search terms.

The plaintiffs opposed this request, arguing that the defendant’s proposed solution could lead to the destruction of evidence of its state of mind in selecting and editing its articles, since the version of articles in the proprietary application are the only versions that reflect a particular intermediary stage of bringing those articles to publication.  They also contended that the proposed search terms are insufficient because the defendant had also used the term “voluntary corps (teishintai)” in articles about comfort women.

Judge’s Ruling

Judge Alsup, observing that the plaintiffs “do not, however, argue that articles with that term would not have otherwise been preserved under the proposed search terms, nor have they identified any other search terms that should be included”, found “that Sankei’s proposal, if amended to include the term “voluntary corps (teishintai),” is sufficiently broad to preserve the versions of articles in the proprietary application that may be related to the issues in this case.”  As a result, he granted the defendant’s motion.

So, what do you think?  Is limiting preservation to documents responsive to a small set of search terms a good idea?  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.

Do You Have Anything to Fear, This Year?: eDiscovery Horrors!

It’s that time of year, time for “Irish Jack” (you know, from the “O’Lantern” family) to make his annual appearance for Halloween.  Every year at this time, we try to “scare” you with tales of eDiscovery (and now, cybersecurity) horrors (because, after all, we’re an eDiscovery blog).  Let’s see how we do this year.  Do you have anything to fear, this year?

Did you know that you can be sanctioned for failing to preserve texts for litigation?  Here’s one example where it happened.

What about this?

International eDiscovery just became more difficult.  A 27-year-old Austrian law graduate may have brought an end to the 15 year old “Safe Harbor” agreement enabling transatlantic data transfers between the U.S. and European Union because of – wait for it – privacy concerns.

Or this?

When a text file doesn’t appear to match its corresponding image file or its corresponding original Excel native file, what do you do?  Here’s what you do.

How about this?

According to this study, two-thirds of law firms have no staff devoted to information security.  Yikes!

Or maybe this?

Did you hear about the firm that designated 141,525 of 148,636 produced documents as “highly confidential”?  The judge ordered them to re-review and re-designate those documents within ten days.  Even assessed a $25,000 fees award against their outside counsel to compensate the defendant for its efforts in reviewing the documents.

Finally, how about this?

This court ordered a mandatory adverse inference instruction against two attorney defendants so that the trier of fact could “draw the strongest possible adverse inference from defendants’ bad faith and intentional destruction, deletion and failure to produce relevant evidence”. The court also awarded attorney fees, and forwarded a copy of the order regarding one of the defendants to the New York State Committee on Professional Standards for attorneys.  Reading the case, it’s easy to understand why.

Scary, huh?  If the possibility of sanctions, issues with international discovery, data breaches or being ordered to re-do your work scares you, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Of course, if you seriously want to get into the spirit of Halloween, click here.  This will really terrify you!

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

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.