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Electronic Discovery

Defendant Compelled to Restore and Produce Emails from Backup Tapes: eDiscovery Case Law

In United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, (D. Nev. Aug. 25, 2015), 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.

Case Background

In this qui tam action under the False Claims Act, the relator filed a motion to compel production of email from the defendant for a “gap period” when the emails were stored on backup tapes, pursuant to the defendants’ email retention policy.  On the belief that the March 2011 tapes held the greatest number and scope of historical emails relevant to this litigation, the defendant had previously restored the March 2011 backup tapes via a third-party vendor and produced emails at a cost of over $100,000 (including attorney review and production).

The defendants objected, alleging that the emails were not reasonably accessible because of undue burden and cost, and stating that its IT department could not restore the gap-period emails in house; therefore, it would have to outsource the restoration work for a cost of $136,000 and a total cost of at least $248,000 after adding data processing and contract attorney review.

Judge’s Ruling

Noting that “[u]nder Rule 26(b)(2)(B), it is Renown’s burden to show that the gap-period emails are not reasonably accessible due to undue burden”, Judge Cooke stated that “As a preliminary matter, the plain language of Rule 26(b)(2)(B) instructs that “undue burden,” rather than the format of the ESI, is to guide the court’s analysis. Technological features of the storage media do enter the analysis, but only as they relate to the undue burden inquiry. Stated differently, undue burden is fact specific and no format is inaccessible per se.”

With that in mind, Judge Cooke concluded that “Renown has failed to show that the gap-period emails are not reasonably accessible because of undue burden. As described above, Renown has produced emails from the restored March 2011 backup tapes. In so doing, Renown has demonstrated that it is technologically feasible to restore and produce the gap-period emails… Accordingly, the court cannot fathom what burden accompanies third-party restoration. Renown has not stated that use of a vendor will nevertheless impose burdens – in terms of staff resources, delay of other critical IT projects, or inadequate attention to existing technology infrastructure.”

As for the defendants’ undue cost argument, Judge Cooke rejected “Renown’s argument that ‘cost’ under Rule 26(b)(2)(B) includes document review and storage”, determining that the “$136,000 figure for restoration is not an undue cost that renders the gap-period emails reasonably inaccessible”.

Next, Judge Cooke turned to the question of whether the relator had established good cause for the emails’ production by applying the seven factor balancing test of the costs and potential benefits of the requested discovery under Rule 26(b)(2)(B).  Determining that “five of the relevant factors favor relator, while two are neutral”, Judge Cooke found that “relator has carried her step-two burden of demonstrating good cause”, so “even were the gap-period emails reasonably inaccessible due to undue burden or undue cost, good cause supports their discoverability.”

Finally, Judge Cooke performed an examination of cost shifting, using the seven factor test used in Zubulake.  Noting that “[t]he weightiest factors, relevance and availability of alternatives, balance powerfully against cost shifting”, Judge Cooke ruled that “the costshifting factors require that Renown bear the cost of restoration.”  Therefore, she granted the relator’s motion to compel and denied the defendant’s motion for cost shifting, ordering the relator and defendant to meet and confer to discuss a schedule for production of the gap-period emails.

So, what do you think?  Should the defendant have been ordered to restore the emails from backup tape?  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.

When a Text File Doesn’t Match the Image or Native Excel File, What Do You Do?: eDiscovery Best Practices

Even when you’ve been in the business for 25+ years, you sometimes encounter situations you can’t explain (at least initially).  Here is a story about a document that I encountered yesterday that initially didn’t make sense to me.  Thankfully, I’m extremely curious and ultimately figured it out (with some help).  See if it will be obvious to you.

The Issue

In a document collection produced by the opposing party to our client (where we received agreed upon images, text files, native files and metadata), I was performing searches in our CloudNine review platform looking for documents related to a key investment account disputed between the two parties.  On one of the documents, I found a hit in the searchable text referencing key information related to the account that was noted by an accountant that we had not yet previously encountered.  This appeared to be an important document.

To get a better look at the document, I decided to look at the image that was provided.  That text entry was not there.

Since we had the produced Excel file, I downloaded a copy of it (from CloudNine) to take a look at it and the text did not appear to be present in the original native Excel file either.  When I performed a search for the accountant’s last name in the entire workbook, Excel retrieved no hits.

What?  How can that be?

Figuring It Out

My first thought was that there were hidden columns, rows or worksheets within the Excel file that were not being searched.  As it turned out, there was one hidden sheet (which I unhid), but repeating my search for the accountant’s last name in the entire workbook still retrieved no hits.

At this point, I’m wondering if the opposing party may have doctored the image and the Excel file, but forgot to doctor the produced extracted text?  You hate to believe the worst of people, but it happens.

Out of ideas, I took the issue to CloudNine’s production manager, Jesus Arellano.  After he looked at the Excel file and performed the same search (finding nothing, which made me feel better), he then decided to perform a text extract of the Excel file using LAW PreDiscovery® (which was later reproduced with our own CloudNine Discovery Client processing software).  We looked at the results in the text and, behold, there was the note from the accountant!

What the hell is going on out here?

Finally, The Answer

Taking another look at the Excel file, we finally noticed that little red triangle in the corner of some of the cells.  Excel comments.  Of course.

When I put the cursor over the cell, the comment popped up, revealing the note (that should have been a clue) from the accountant.  Excel comments aren’t normally displayed unless you put the cursor on the cell where the comment is contained (you can show all comments under the review tab, but hardly anybody ever does).  When the Excel is “printed” to an image file, only the main portion of the workbook is “printed”, not the hidden comments.  The same is true for other Microsoft Office applications, as well.  So, don’t expect to typically see the hidden comments in an image of an Excel workbook, Word document or other Office file.

As for searching the hidden comments in Excel, you can do so using Ctrl+F, you just have to make sure you change the “Look in” field to Comments to search those specifically (see the example below using my last name of Austin):

 

Perhaps, if it hadn’t been at the end of a long day, I would have caught it more quickly (that’s my excuse, anyway).  Nonetheless, it serves as an excellent example of how hidden metadata can contain important information.  Due to this find, resulting from the original text search I did, we identified an individual for our client to depose!

So, what do you think?  Have you ever encountered data important to a case in the hidden metadata of a file?   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.

This Study Says Two-Thirds of Law Firms Still Have No Staff Devoted to Information Security: eDiscovery Trends

Not surprisingly, a major “hot” topic at ILTACON earlier this month was cybersecurity.  Stories about data hacks are abundant, with recent notable hacks including this one and this one, and you may not even know if the law firm holding your data has ever suffered a breach.  A new study, introduced at ILTACON earlier this month, aims to shed light on security assessment practices of legal organizations in North America.

The 2015 Study of the Legal Industry’s Information Security Assessment Practices was developed by Digital Defense Inc. (DDI), in collaboration with ILTA’s LegalSEC Steering Committee.  It aims to help law firms evaluate their individual information security practices, as well as to examine the state of security in the legal profession as a whole.

There were over 150 participants in the study, with Chief Information Officers and IT Managers collectively accounting for 63% of those participants.  Of the firms that participated, 83% identified the top area of practice as Litigation, followed closely by Corporate, Labor & Employment, and Real Estate, all over 70%.

Some key findings of the report include:

  • 66% of organizations surveyed have no staff devoted to Information Security;
  • Employee Negligence and Phishing/Vishing Attacks rank as the highest information security concerns within firms;
  • Many organizations are performing services to combat employee negligence, with 78% performing Information Security training for employees;
  • Approximately 70% of respondents conduct Vulnerability Scanning assessments and Penetration tests, a significant increase (15-20%) from 2014;
  • However, 63% of respondents do not have a Vendor Management Evaluation process in place.

The 24-page study includes: 1) a breakdown of participants (in terms of title, practice areas, firm size and geographic representation), 2) information on firms’ information security programs (including strategy, budget allocations and resource management), 3) information security concerns and products/services used to address those concerns, 4) information security standards, policies and training programs and even 5) a glossary of terms (do you know what “vishing” is?  I didn’t).

You can download a free copy of the study here.  For more information about ILTA’s LegalSEC initiative, click here.

So, what do you think?  Are you surprised by any of the study results?   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.

Despite Failure to Implement a Litigation Hold, Defendant Escapes Sanctions: eDiscovery Case Law

Is this case is one example of Craig Ball’s contention that “you are more likely to be hit by lightning than to be sanctioned for non-preservation of ESI”?  You decide.

In Flanders v. Dzugan et. al., 12-1481 (W.D. Pa., August 24, 2015), despite the fact that the defendant failed to implement a litigation hold, Pennsylvania District Judge Nora Barry Fischer denied the plaintiff’s Motion for Sanctions alleging the defendants failed to preserve evidence relevant to the case, finding that the plaintiff “cannot show any evidence was actually lost or destroyed”, “cannot show that if evidence was lost or destroyed, it would have been beneficial to his case” and “[n]or can Plaintiff show bad faith”.

Case Background

In this case where the plaintiff sued the defendants for constitutional violations related to their building permit approval process, the parties filed a Joint ESI Protocol Status Report with the Court in October 2014, agreeing that they would “initially focus their search” on the email of four employees of the defendant.  From these four individuals, the defendants turned over a total of 33 emails relating to the plaintiff and the litigation.  In one of these emails between two of the individuals, Defendant Dzugan stated, referring to the plaintiff, that he is “[g]etting tired of him.”  The plaintiff asserted that there must have been other similar emails that were not produced.

The Court ordered the defendants to file evidence of any litigation hold they had put in place for this lawsuit, but the defendants never filed any such evidence, and as Judge Fischer noted “it appears to be undisputed that they never put a litigation hold in place.” In its Motion for Sanctions, the plaintiff provided two arguments for a charge of spoliation for lack of a litigation hold: 1) arguing that the emails recovered from the email accounts that were searched cannot possibly be all the emails relating to the plaintiff and 2) arguing that additional email accounts were never searched at all.

Judge’s Ruling

Judge Fischer stated that “Plaintiff is correct that Defendants should have put a litigation hold in place”, but determined that “other elements of a spoliation claim, however, are not satisfied here”.  Continuing, Judge Fischer stated:

“Here, the only thing Plaintiff can say with any specificity is that Defendants do not appear to have put a litigation hold in place. Plaintiff cannot show any evidence was actually lost or destroyed. Plaintiff also cannot show that if evidence was lost or destroyed, it would have been beneficial to his case. Instead, Plaintiff’s Brief relies on inferences that such evidence must have existed, and thus must have been lost as a result of Defendants’ failure to institute a litigation hold.”

Referencing Bull v. UPS, Judge Fischer also stated that “[w]ith respect to actual suppression of evidence, the Third Circuit has clarified that a court must determine that the relevant actor suppressed or withheld the evidence in bad faith…A finding of bad faith is therefore ‘pivotal’ to a spoliation determination.”  She found the defendant’s handling of discovery to be “sloppy”, but stated that “in the Court’s estimation, this does not rise to the level of bad faith, particularly given the size and resources of Ford City and the fact that Solicitor is a part-time position.”  As a result, Judge Fischer found the spoliation motion “lacking in specificity and a showing of bad faith” and denied the motion.

So, what do you think?  Should the defendant have been held more accountable for the lack of a litigation hold?  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.

If You Ever Have to Compare RFP Vendors, EDRM Has a New Calculator for You: eDiscovery Best Practices

Let’s face it, comparing bids from different eDiscovery vendors on an “apples to apples” basis can be difficult as each vendor seems to have its own unique pricing structure.  However, a new calculator from EDRM can help simplify the comparison process to identify the low cost provider.

The designer of the latest calculator is Casey Flaherty, former in-house counsel for Kia Motors America and founder of Procertas, a company offering training to corporate legal teams on improving efficiency and reducing costs.  This is the sixth budget calculator available from EDRM (we covered the previous five here, here, here, here and here).

Flaherty’s budget calculator is three sets of calculators in one. The Baseline Calculator sheet contains the client’s current pricing model. The Standard Calculator sheets compare vendors against each other and a baseline. The Proposed Calculator sheets – identified by a “(P)” in the sheet name – enable you to track additional savings vendors present that they believe they will be able to achieve. Each spreadsheet provides sample numbers to better understand how the workbook performs calculations, but Flaherty recommends that each user replace those with their own figures.

The current workbook provides several sample sheets, with the Standard Calculator and Proposed Calculator sheets named from #1 to #5 (add a “(P)” in the sheet name of the Proposed Calculator sheets and you get the idea.  Obviously, those sheets could be easily renamed to identify the vendors being considered in the RFP process and sheets can be easily added (and copied) or deleted as needed to reflect the total comparison.

Each sheet contains sections for Collection, Processing, Review and Production, with Assumptions, Pricing and Alternative Pricing sub-sections for each:

  • Collection: includes assumption options for tracking collection at the custodian, share drive, event, days, travel hours and/or GB basis;
  • Processing: includes assumption parameters for tracking initial ingested volume, filter rates for pre-process and ECA, tech/PM hours and tracking hosting for near-line data;
  • Review: is the most comprehensive section and tracks metrics for everything from reviewer and user licenses (not all providers charge those, so shop around) to consultation hours to support for tracking Technology Assisted Review (TAR) and even machine translation and bilingual review(!);
  • Production: includes tracking docs and GBs produced and provides options for tracking both native and TIFF productions.

The workbook is completely customizable, so if you’re good with Excel, you can add or remove categories as needed.  The workbook is not locked, so calculation cells are editable (either by design or accidentally) – again, if you’re good with Excel, you can lock down individual sheets or the entire workbook to lock down editing of calculation cells.  A terrific resource if you need to compare quotes from eDiscovery vendors for your project!

To download this calculator (or any or all of the previous five EDRM calculators), click here.

So, what do you think?  How do you handle evaluating bids from multiple eDiscovery vendors?   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.

You’re More Likely to Be Hit by Lightning Than to Be Sanctioned for Non-Preservation of ESI: eDiscovery Best Practices

When it comes to eDiscovery topics, eDiscovery expert (and frequent thought leader interviewee on this blog) Craig Ball doesn’t hesitate to speak his mind and confront the (oftentimes) brutal truth.  In Craig’s latest post in his excellent Ball in Your Court blog, he does so in spades.

In Preservation and Proportionality, Craig sets the stage with a graphic showing a Lady Justice statue with a thumb holding down one end of the scales (I like it!).  He introduces the topic by stating:

“Litigants have been ignoring e-discovery obligations with impunity for so long they’ve come to think of it as an entitlement.  Protected from predators, few have evolved.  But now that opponents and courts are waking to this failure, those who’ve failed to adapt are feeling exposed. They don’t like it, and they want protection.  They call it ‘proportionality.’

Proportionality sounds wholesome and virtuous, like ‘patriotism’ or ‘faith;’ but like those wholesome virtues, it’s sometimes the refuge of scoundrels.”

But, without proportionality, how will organizations protect themselves against the “increased” threat of sanctions for spoliation?  Craig addresses that by debunking the myth:

“The much-ballyhooed ‘rise in sanctions’ is designed to mislead.   The solid metrics we have on spoliation sanctions prove that the risk of being sanctioned for negligent non-preservation remains miniscule (.00675% per a report from the Federal Judicial Center).  Put simply: In the United States, you are more likely to be hit by lightning than to be sanctioned for non-preservation of ESI.”

Noting that “the overwhelming majority of e-discovery sanctions decisions turn on venal acts like intentional destruction of evidence and contemptuous disregard of discovery obligations”, Craig decides to “tell it like it is: The claim that diligent, responsible litigants are being sanctioned for innocent e-discovery errors is hogwash.”

Craig then addresses how many organizations address their preservation obligations to avoid sanctions “by embracing monumental inefficiency in preservation instead of making sensible, defensible choices” and blaming the plaintiff for requesting the data (spoiler alert, it’s not the plaintiff’s fault).  “To the extent ‘proportionality’ is a byword for ‘let us err with impunity,’ it’s too soon in the evolution of e-discovery to be so resigned to incompetence.  If anything, we need more sanctions for incompetence, not more safe harbors”, Craig states.

Craig’s post continues to discuss the level of competence of lawyers preserving data, the efforts to use the proportionality argument and the court’s role in deciding (“proportionality shouldn’t be pressed into service as a “Get Out of Jail Free” card for botched preservation; but, it can prove instructive to courts weighing sanctions for failure to preserve relevant evidence”, he states).  In the end, it’s up to courts to “insist parties know how to use the scale and don’t put their thumbs on the pan” (of the scales of justice, that is).

By the way, this isn’t a recent sentiment of Craig’s spawned by the impending Federal rules changes this December, he notes that he wrote this post four years ago, but never posted it.  Interesting.

A link to his post is here.

So, what do you think?  Do you think we need more sanctions for incompetence and not just for willful destruction of ESI?   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.

Legal Salaries on the Rise? That’s the Half of It: eDiscovery Trends

Robert Half, that is.

Robert Half’s 2016 Legal Salary Guide features salary ranges for more than 100 positions in the legal field and provides some other interesting statistics, as well.  According to the Guide, average starting salaries for lawyers at law firms are expected to increase 3.5 percent in 2016.  And, salaries for experienced litigation support and eDiscovery directors and managers are expected to rise even more than that.

The salary figures in the 2016 edition are based on a number of sources, most notably the thousands of full-time, temporary and project placements Robert Half’s staffing and recruiting professionals make each year. Here are some breakdowns:

  • Lawyers: Starting salaries for lawyers with 10-plus years’ experience are expected to increase 0 to 4.7 percent from 2015 (depending on the size of the firm). A lawyer with 10-plus years’ experience at a large firm (75+ lawyers) is expected to hit an average range of $194,250 to $279,500 annually.  First-year associates’ salaries are expected to increase 2.2 to 2.7 percent increase over 2015 projections.  Corporate in house counsel are expected to see average compensation gains of 2.2 to 3.7 percent over 2015 levels, with the more experienced in house counsel trending toward the top end of that range (average range of $185,250 to $259,750 annually).
  • Paralegals/Legal Assistants: Starting salaries for paralegals/legal assistants are expected to increase 0 to 4.0 percent from 2015. Senior legal assistants with 7+ years of experience are expected to make as much as $96,750 annually at large law firms.
  • Litigation Support/eDiscovery: Starting salaries for litigation support/eDiscovery directors and managers are expected to increase from 4 to 5.7 percent annually from 2015. The top end of the salary range for litigation support/eDiscovery directors with 10+ years of experience is $130,500.  Document coders also see an increase – 3.6 percent over 2015.

The guide also provides salary expectations for office managers, legal secretaries, legal specialists and contract and compliance administration positions for both law firms and corporate legal.  Not surprisingly, they’re all up.

Other notable statistics:

  • Lawyers’ top responses to the question “Aside from compensation or bonus, which of the following provides the best incentive for legal professionals to remain with a law firm/ company?” were as follows: Challenging work or variety of assignments (39 percent), Professional development opportunities (26 percent), Flexible work arrangements (20 percent).
  • 71 percent of lawyers said blended or hybrid paralegal/legal secretary positions are more common today than they were two years ago.
  • The top two practice areas that are expected to generate the greatest number of legal jobs in the next two years in the US are: Litigation (33 percent) and General Business/Commercial Law (26 percent).

The survey guide also provides an adjustment for various US cities across the country (obviously, salaries are much higher in New York (140 percent of the reported numbers for the different positions) than in Duluth, MN (79.6 percent).  For example, the top end of the salary range for litigation support/eDiscovery directors with 10+ years of experience in Houston (107.5 percent for my hometown) is actually $140,287 (just sayin’).  So, you can adjust the numbers based on local variances.  The guide even has a Canada section, eh?

The FREE 36 page PDF guide is available here.  Check it out.  Maybe you need a raise?

So, what do you think?  Do the numbers surprise you?  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 Motion for Sanctions Against Veterinary Hospital for Spoliation of ESI: eDiscovery Case Law

In Grove City Veterinary Service, LLC et. al. v. Charter Practices International, LLC, 13-02276 (Aug. 18, 2015), Oregon Magistrate Judge John V. Acosta concluded that the plaintiffs had not met their burden of showing they are entitled to sanctions for spoliation of evidence by deleting one of the veterinarian’s archived work emails.

Case Background

In this breach of contract case between veterinarians and a veterinary hospital, during discovery for this case, one of the plaintiffs was required to search for and produce emails stored in his email archive responsive to the defendant’s requests for production.  In August 2014, the plaintiff attempted to access old emails stored in his email archive, but was unable to locate more than one-hundred folders of archived emails.  Later that month, the plaintiff contacted the defendant’s IT department for help finding the “missing” emails.  A member of the defendant’s IT department requested a time when he could come and assist the plaintiff. In the plaintiff’s response, he disclosed that he sought the emails “[r]egarding a legal matter”. Because the plaintiff’s request was in furtherance of a legal matter, the IT department referred the issue to the defendant’s legal department, which refused further assistance and advised the plaintiffs that the defendant was not responsible for locating documents responsive to its own discovery requests (eventually, however, the plaintiff noted that “some,” but not all, of the missing folders had repopulated to his archive inbox).

Based on the defendant’s refusal to perform the search, the plaintiffs moved for spoliation.  The defendant denied it was responsible for “missing” emails, and in their response, requested an award of attorney fees because of the plaintiffs’ “unjustified” motion for sanctions.

Judge’s Ruling

Noting that a defendant “may be subject to sanctions, particularly dispositive sanctions, only if it committed ‘willful’ spoliation of evidence”, Judge Acosta stated: “Here, Plaintiffs do not establish that the emails were willfully destroyed by CPI, or even that the emails were destroyed at all.”

The plaintiffs relied on a report by its computer forensic analyst to request sanctions for spoliation, but Judge Acosta disputed the reliability of his report, noting that he “produces no evidence which shows CPI’s IT department remotely accessed Baltzell’s computer without permission or tampered with Baltzell’s archived emails in any way”, that he “fails to disclose that, during his analysis of Baltzell’s computer, the computer was not logged into the CPI’s servers where the archived emails are stored” (which meant he wouldn’t have been able to access the files anyway) and that an “excerpt of the activity log showed that CPI IT last remotely accessed Baltzell’s computer on July 2, 2014, well before Baltzell had difficultly(sic) finding the emails in question.”  In addition, the defendant produced evidence that the missing emails were accessible in the plaintiff’s email archive, but that they had been “dragged and dropped” into a folder not typically associated with archived emails.  Judge Acosta concluded that the “absence of the activity log in the record is telling and suggests Jorgensen found no direct evidence of knowing wrongdoing by CPI.”

As a result, Judge Acosta denied the plaintiff’s request for sanctions.  He also denied the defendant’s attorney fees, because “the court cannot conclude Plaintiffs motion was ‘unjustified.’”

So, what do you think?  Was this an open and shut case?  Should the defendant have been awarded attorney fees?  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.

Believe it or Not, Apple v. Samsung is Still Going Strong: eDiscovery Case Law

Remember, the Apple v. Samsung case?  We covered this case so much last year that it had its own category in our four part annual case law review (where we covered 68 unique cases!).  We took a break from covering it this year to focus on other cases where more significant eDiscovery rulings were taking place.  Nonetheless, it appears that Samsung may, just may, finally have to pay some damages to Apple for patent infringement.

According to Law 360 (subscription required), on Friday, 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 (almost as long as this blog has been around!).  “The court is bound to follow the Federal Circuit’s decree as the law of the case,” Judge Koh said in granting the motion.

The Federal Circuit last month rejected Samsung’s bid to delay implementation of an order that it pay Apple $548 million in damages while Samsung appeals the ruling to the U.S. Supreme Court.  In a brief order, a three-judge Federal Circuit panel denied Samsung’s motion asking the court to hold off on issuing its mandate while it petitions the high court for a review.  Samsung’s motion argued that a retrial on damages is likely and a stay would be more efficient, but Apple quickly argued that Samsung hadn’t given any reason why the Supreme Court would even agree to hear the case, let alone overturn the Federal Circuit’s ruling.

Apple won several battles with Samsung, including ultimately being awarded over $1 billion in verdicts (ultimately reduced to the current $548 million), as well as a $2 million sanction for the inadvertent disclosure of its outside counsel firm (Quinn Emanuel Urquhart & Sullivan LLP) commonly known as “patentgate”, but ultimately may have lost the war when the court refused to ban Samsung from selling products that were found to have infringed on Apple products (that is still being disputed in the courts, too).  This case has also had disputes over eDiscovery cost reimbursement and an adverse inference sanction for Samsung for failing to turn off “auto-delete” of emails after the case began.  In other words, this case is a legal blogger’s dream!  :o)

Samsung indicated in a filing on Friday that if Judge Koh entered partial final judgment, it would appeal the decision to the Federal Circuit and its outside counsel said during the hearing that Samsung retains the right to do so.  Apple’s outside counsel referred to a possible appeal as “frivolous” and Judge Koh remarked during the hearing “If you want to file a frivolous appeal, I guess that’s your right”.

In this case, nothing would be surprising, except for the case ending quickly, which it shows no signs of doing.

So, what do you think?  Have you been following Apple v. Samsung?    Will it ever end?  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.

Five is Alive! eDiscovery Daily is Five Years Old!

Believe it or not, it has been five years ago yesterday since we launched the eDiscovery Daily blog!

When we launched five years ago on September 20, 2010, we told you to not get “wild” with wildcards and we published our first case law post about a case where the spoliator of data was actually threatened with jail time.  Since then, we’ve published over 418 additional posts about case law, involving more than 275 distinct cases!

Back then, our goal was to be a daily resource for eDiscovery news and analysis and we’ve continued to do so for five years.  If we were a child, we would be ready for kindergarten; if we were a dog, we would be 35 (in dog years).  We’ve had nearly 450,000 visits to the site and have published over 1,250 lifetime posts!  And, every post we have published is still available on the site for your reference, which has made eDiscovery Daily into quite a knowledgebase!  We’re quite proud of that.

Comparing our first three months of existence to now, we have seen traffic on our site grow an amazing 866%!  And now, we’re the only publication that is an EDRM Education partner.  As always, we have you to thank for all of that success!  Thanks for making the eDiscovery Daily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

As many of you know by now, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

Who is investing in eDiscovery Companies?  Here’s who – thanks to Rob Robinson.

Did you know that stolen health records can go for $10 each on the black market?

“Fuzzy” searching can help you find matches you might otherwise miss, but too much “fuzzy” can be a bad thing.

Signature logos can add a lot of overhead to the review process and can comprise 30% or more of an email collection.  Fortunately, there are options to address the issue.

The law firm holding your data may have suffered a breach at some point, but you may not know about it.

Earlier this year, an Arkansas lawyer claimed that he received “Trojans” with his document production from the Fort Smith police department.  And, by “Trojans”, I mean the malware kind, not the other kind.

By the way, unless Congress intervenes, new Federal Rules changes are going into effect this December.

And, if you use CCleaner (aka “Crap” Cleaner) to wipe responsive data off your drive, expect to be sanctioned for it.

This firm marked up reviewer billings over 500% (and that’s not the worst part).

If you need proof that technology assisted review can save money, perhaps this study can help.

Here are two cases on spoliation with the same spoliation claims (and even the same plaintiff), but with different outcomes.  Hmmm.

If you’re going to allow custodians to self-collect documents, you should be prepared to explain the process associated with that self-collection.

Should contract review attorneys receive overtime pay?  Are they actually performing legal work?  This case may set a precedent in that regard.

If you’re going to submit a 2,941 page privilege log, you’d better be able to demonstrate privilege.

Man’s best friend is starting to be used to assist with forensic data collections.

And, I haven’t even mentioned the Houston Astros and Ashley Madison data hacks.  Now I have.

This is just a sampling of topics that we’ve covered.  Hope you enjoyed them!

Thanks for the interest you’ve shown in the topics!  We will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!  On to the next five years!

Image courtesy of TriStar pictures (Short Circuit, 1986, slightly before this blog was first published)… :o)

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.