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Electronic Discovery

Craig Ball Explains HASH Deduplication As Only He Can: eDiscovery Best Practices

Ever wonder why some documents are identified as duplicates and others are not, even though they appear to be identical?  Leave it to Craig Ball to explain it in plain terms.

In the latest post (Deduplication: Why Computers See Differences in Files that Look Alike) in his excellent Ball in your Court blog, Craig states that “Most people regard a Word document file, a PDF or TIFF image made from the document file, a printout of the file and a scan of the printout as being essentially “the same thing.”  Understandably, they focus on content and pay little heed to form.  But when it comes to electronically stored information, the form of the data—the structure, encoding and medium employed to store and deliver content–matters a great deal.”  The end result is that two documents may look the same, but may not be considered duplicates because of their format.

Craig also references a post from “exactly” three years ago (it’s four days off Craig, just sayin’) that provides a “quick primer on deduplication” that shows the three approaches where deduplication can occur, including the most common approach of using HASH values (MD5 or SHA-1).

My favorite example of how two seemingly duplicate documents can be different is the publication of documents to Adobe Portable Document Format (PDF).  As I noted in our post from (nowhere near exactly) three years ago, I “publish” marketing slicks created in Microsoft® Publisher, “publish” finalized client proposals created in Microsoft Word and “publish” presentations created in Microsoft PowerPoint to PDF format regularly (still do).  With a free PDF print driver, you can conceivably create a PDF file for just about anything that you can print.  Of course, scans of printed documents that were originally electronic are another way where two seemingly duplicate documents can be different.

The best part of Craig’s post is the exercise that he describes at the end of it – creating a Word document of the text of the Gettysburg Address (saved as both .DOC and .DOCX), generating a PDF file using the Save As and Print As PDF file methods and scanning the printed document to both TIFF and PDF at different resolutions.  He shows the MD5HASH value and the file size of each file.  Because the format of the file is different each time, the MD5HASH value is different each time.  When that happens for the same content, you have what some of us call “near dupes”, which have to be analyzed based on the text content of the file.

The file size is different in almost every case too.  We performed a similar test (still not exactly) three years ago (but much closer).  In our test, we took one of our one page blog posts about the memorable Apple v. Samsung litigation and saved it to several different formats, including TXT, HTML, XLSX, DOCX, PDF and MSG – the sizes ranged from 10 KB all the way up to 221 KB.  So, as you can see, the same content can vary widely in both HASH value and file size, depending on the file format and how it was created.

As usual, I’ve tried not to steal all of Craig’s thunder from his post, so please check out it out here.

So, what do you think?  What has been your most unique deduplication challenge?  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.

Plaintiff Once Again Sanctioned with an Adverse Inference Instruction, But Still No Complete Dismissal: eDiscovery Case Law

In Lynn M. Johnson v. BAE Systems, Inc. et. al., Civil Action No. 11-cv-02172 (RLW) (D.D.C. May 27, 2015), District of Columbia District Judge Robert L. Wilkins granted the defendants’ motion for summary judgment with respect to the plaintiff’s claims for negligence, battery, and defamation, but chose to “impose lesser, but nonetheless severe, sanctions” in the form of an adverse inference instruction for her remaining claim for intentional infliction of emotional distress.

Case Background

The plaintiff, a U.S. government employee deployed in Iraq, sued the defendants for actions taken by its employee during a project that they worked on together, alleging “severe physical and emotional health problems”.  During discovery, the defendant requested medical records in preparation for an expert witness’s examination of the plaintiff – she provided the defendant with falsified medical records which she had edited in an effort to eliminate references to health issues that predated her deployment to Iraq. The defendant filed a motion for sanctions seeking dismissal and the Court granted in part and denied in part the motion, sanctioning the plaintiff and her counsel with fees and an adverse inference instruction.

Then, on September 25, 2013, the defendant requested a forensic examination of the plaintiff’s computer.  That evening, the plaintiff contracted with a local computer technician who performed various maintenance functions, which included running a program called CCleaner that is capable of permanently deleting files.  Subsequent forensic analysis showed that several Microsoft Outlook .pst email storage files were placed into the recycling bin and deleted on September 27.  The technician testified that the plaintiff did not tell him she was in litigation, she did not ask him not to delete anything from her computer and he did not place the Outlook files in the recycle bin. The defendants also requested Facebook messages, and the court found evidence that the plaintiff had tampered with those messages, as well.

Judge’s Ruling

Regarding the latest activities by the plaintiff, Judge Wilkins stated that “The Court finds by clear and convincing evidence that Ms. Johnson destroyed, attempted to destroy, or caused to be destroyed files on her computer with potential relevance to this case”, noting that “under no circumstances should Ms. Johnson have contracted with a computer technician to ‘clean up’ a computer sought for forensic imaging, particularly without making a disk image or even informing the technician of ongoing litigation. That she chose to do so is very troubling.”  Judge Wilkins expressed similar concern by the plaintiff’s failure to produce Facebook messages from earlier than February 2013.

Summarizing the behavior by the plaintiff, Judge Wilkins stated “Over the course of this suit, Ms. Johnson has repeatedly obfuscated the truth. She has altered medical records, contradicted herself in depositions and testimony before the Court, and failed to preserve and produce relevant documents during discovery.”  Still, Judge Wilkins could not bring himself to dismiss the case, stating “Although it is an exceedingly close question, the Court concludes that Ms. Johnson’s conduct does not merit this most serious of remedies.”

As a result, Judge Wilkins awarded the defendant an adverse inference instruction sanction against the plaintiff, awarded the forensic expert’s fees spent by the defendant’s expert and dismissed the plaintiff’s claims for negligence, battery, and defamation.

So, what do you think?  Should the repeated violations by the plaintiff have led to full dismissal?  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 is the Services “Mashup” of eDiscovery Market Estimates: eDiscovery Trends

A couple of weeks ago, we covered the software “mashup” from Rob Robinson’s Complex Discovery site, which is an excellent resource for discovery and general legal technology articles (and a daily blogger’s best friend).  Last week, Rob released his worldwide eDiscovery services overview for 2014 to 2019.

As always, the compilation is “[t]aken from a combination of public market sizing estimations as shared in leading electronic discovery publications, posts and discussions over time”.  Rob’s latest “Mashup” shares general market sizing estimates for the services area of the electronic discovery market for the years between 2014 and 2019.

Regarding the services estimates, here are some highlights (based on the estimated from the compiled sources):

  • The eDiscovery Services market is expected to grow an estimated 12.24% annual growth per year from 2014 to 2019 from $4.03 billion to $7.18 billion per year. Services currently comprise 70% of the market, which is expected to slightly decline to 68% by 2019.
  • Not surprisingly, review services comprise the majority of the services provided at 73%, followed by processing services at 19% and collection services at 8%. That distribution has remained steady for the last two years.
  • Per Rob’s previous “mashups”, previous estimated growth rates for eDiscovery services were 14.87% annual growth per year from 2013 to 2018 from $3.86 billion to $7.72 billion per year and 14.9% annual growth per year from 2012 to 2017 from $4.04 billion to $7.03 billion per year. So, this year’s estimated 12.24% annual growth rate over the next five years reflects quite a slowdown from previous estimates.

Here are the sources that Rob states were used in compiling the “mashup”:

  • Global Industry Analysts, Inc. “eDiscovery (Software and Services) Global Strategic Business Report.” May 28, 2015.
  • Gartner, Inc. “Magic Quadrant for E-Discovery Software.” Jie Zhang, Garth Landers. May 18, 2015.
  • The Radicati Group. “eDiscovery Market, 2014-2018.” Sara Radicati. December 3, 2014.
  • Transparency Market Research. “eDiscovery Market – Global Industry Analysis, Size, Share, Growth, Trends and Forecast, 2014-2020).” June 2014.
  • Gartner, Inc. “Magic Quadrant for E-Discovery Software.” Jie Zhang, Debra Logan, Garth Landers. June 19, 2014.
  • IDC “Worldwide eDiscovery Software 2014-2018 Forecast.” Sean Pike. May 2014.
  • The Radicati Group. “eDiscovery Market, 2013-2017.” Sara Radicati. August 2013.
  • Gartner, Inc. “Magic Quadrant for E-Discovery Software.” Debra Logan, Alan Dayley, Sheila Childs. June 10, 2013.
  • The Radicati Group. “eDiscovery Market, 2012-2016.” Sara Radicati, Todd Yamasaki. October 2012.
  • Transparency Market Research. “World e-Discovery Software & Service Market Study.” August 2012.
  • Rand Institute For Civil Justice. “Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery.” Nicolas Pace and Laura Zakaras. April 2012.
  • IDC “MarketScape: Worldwide Standalone Early Case Assessment Applications Vendor Analysis.” Vivian Tero. September 19, 2011.
  • Industry Observer Estimations (Multiple Observers)

Here are the links for Rob’s compilations of various eDiscovery market estimates for 2012 to 2017 and for 2013 to 2018 that we have covered in the past two years.

So, what do you think?  Do you think the eDiscovery services market is slowing down?  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.

Plaintiff Ordered to Re-Produce Files in Native Format Because it Failed to Meet and Confer with Defendant: eDiscovery Case Law

You’d think a distributor of bar exam materials would know better…

In Themis Bar Review, LLC v. Kaplan, Inc., Case No. 14CV208-L, (S.D. Cal. May 26, 2015), California Magistrate Judge Barbara L. Major ordered the plaintiff pay for the cost to produce files in native format after the plaintiff originally produced unsearchable PDF images without metadata and failed to properly meet and confer with the defendant regarding production format as stipulated in the parties’ Joint Discovery Plan.

Case Background

On January 9, 2015, the plaintiff produced a CD-Rom containing spreadsheets reflecting the plaintiff’s pass rate statistics by jurisdiction and the records of its students’ bar exam results with the percentage of the plaintiff’s course work that each student had completed.  The spreadsheets were produced as PDF copies of the electronic files that had been Microsoft Excel spreadsheets – the produced PDF copies were stripped of their filtering, sorting, and searching capabilities.

On April 22, the plaintiff produced a hard drive containing 822,493 pages of email communications, again as imaged PDF files with no searchable text or metadata, despite the defendant’s repeated requests for the production to include extracted text.  The defendant had also previously offered to meet and confer to discuss the required production format.  The plaintiff ultimately responded by stating that the Joint Discovery Plan only required the production of PDF documents and that the parties had “never discussed producing the hard drive with extracted text, nor the . . . format of the hard drive production.”  The defendant responded that the Joint Discovery Plan sets forth a procedure for requesting the production of metadata that requires both sides to meet and confer regarding the request.

On May 7, the plaintiff produced the Mircosoft Excel spreadsheets in native format and explained “[p]reviously, you demanded that we provide the native files to you without explanation. For the first time, you explained in your motion to compel why Kaplan needed the files in native format.”  On May 12, the defendant offered to pay half of the cost – up to $8,200 – for the plaintiff “to produce the e-mails and attachments in the format we have specified in our motion”, but the plaintiff refused, stating they would only do so if the defendant paid the entire cost to re-produce.

Judge’s Ruling

With regard to the dispute regarding the Joint Discovery Plan, Judge Major excerpted the portion of the plan at issue, including this passage:

“If a party believes, on a case-by-case basis, that documents should be produced in a format other than native format, or that metadata should be produced, the parties collectively agree that they will meet and confer in good faith to discuss such alternative production arrangements.”

As a result, Judge Major ruled as follows:

“Based on the evidence provided by the parties and for the reasons set forth herein, the Court DENIES AS MOOT Defendant’s request that Plaintiff reproduce the spreadsheets in native format, GRANTS Defendant’s request for production of the emails with associated metadata in searchable format, and REQUIRES Plaintiff to pay for the cost of reproducing the emails with the associated metadata in searchable format. The Court finds that it is appropriate that Plaintiff pay for the reproduction because Plaintiff ignored Defendant’s request to produce the documents in the native format with metadata, failed to meet and confer with Defendant as required by the Joint Discovery Plan, and then produced the documents in the unsearchable PDF format without metadata.”

So, what do you think?  Should the plaintiff have been ordered to re-produce the documents at their own cost?  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.

Rest in Peace, Jack Halprin

I was prepared to report some happy news today, as Chris LaCour joined EDRM last week as Director of Business Development. You may know Chris from the eDiscovery retreats that he coordinated over the past few years or his work with ING3NIOUS, which has worked to link a network of providers to the technology decision makers at organizations.  Chris will manage the growing line-up of EDRM conferences, events, and eDiscovery education programs and, knowing Chris, will work tirelessly to promote EDRM within our industry.  Congrats, Chris!

Unfortunately, with this happy news, I also learned of sad news earlier today.  Jack Halprin, head of eDiscovery at Google, passed away on July 2 after a brief battle with Non-Hodgkin’s lymphoma.  He was only 46 years old.

My earliest experience in EDRM was working on the Metrics project with Jack for two years back in 2006 and 2007.  While I did not get to know him well, he was a pleasure to work with and we accomplished a lot during those two years early in the history of EDRM.  Jack was also one of the original LegalTech thought leader interviews that we did back in 2011, while he was still with Autonomy, and eDiscovery Daily was less than 6 months old.

Greg Buckles at the eDJ Group was the other Metrics team leader (along with Jack) at that time and remarked on the eDJ Blog: “He never let go of that irrepressible intensity, irreverence and honesty that we all brought to our first job” and noted that “the eDiscovery world is a smaller, darker place” without Jack.  Indeed.

My best memory of Jack is from one of the EDRM annual meetings.  Back then, the team leaders each gave a brief summary of the accomplishments of their team (back then, we called them “working groups”) during the dinner at the conclusion of the first day.  The team leader presenting before Jack gave a long-winded, but hilariously funny, speech that had everybody rolling.  Most of us figured that would be a tough act to follow.  Jack addressed it quickly:

“I would try to compete with that, but I bill by the hour, so…”

Everybody roared with laughter.

Jack was recently in the news regarding a battle over his attempts to evict tenants at a property he purchased, but the Jack I knew was nothing but a pleasure to work with and to know.  I will miss him.

If you’d like to remember Jack, memorial donations may be made to the Lymphoma Research Foundation of America.

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.

Independence Day is Saturday! Declare Your eDiscovery Independence!: eDiscovery Best Practices

As we approach our country’s independence day on Saturday, we thought we would take a look at how that relates to electronic discovery and ask this question: Do you feel like you’re frequently dependent on others to accomplish the tasks you need to complete within your discovery process?  If so, here’s some ways you can declare your eDiscovery independence!

Independence Day is more than hot dog eating contests, parades, barbecues, fireworks and re-runs of the movie Independence Day.  It’s also the recognized anniversary (the 239th this year! – can you believe it?) of the adoption of the Declaration of Independence on July 4, 1776, declaring our independence from Great Britain.

Anyway, if you’re feeling repressed and want to try something revolutionary, here are a few ideas:

These are just a few of the ways that you can declare your independence and take control of your discovery process.  You have more independence than you think!

So, what do you think?  Do you feel like you’re frequently dependent on others to accomplish the tasks you need to complete within your discovery process?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will return on Monday.  Happy Independence Day!

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.

Judge Recommends Default Judgment Sanctions Against Defendants, Even Though Some Deleted Files Were Recoverable: eDiscovery Case Law

In Malibu Media, LLC v. Tashiro, Case No. 13-cv-00205 -WTL-MJD (S.D. Ind. May 18, 2015), Indiana Magistrate Judge Mark J. Dinsmore issued a Report and Recommendation on Plaintiff’s Motion for Sanctions, recommending that the Court grant the plaintiff’s motion against the defendants for spoliation of evidence and perjury and enter default judgment against the defendants.

Case Background

In 2013, the plaintiff retained a German company to investigate whether certain internet users were infringing plaintiff’s copyrights by uploading and/or downloading its copyrighted adult movies via a BitTorrent client and, after monitoring the BitTorrent file distribution network, the provider identified certain IP addresses that were being used to distribute Plaintiff’s copyrighted movies.  The plaintiff initially filed suit against an unidentified defendant, but amended the complaint to name the defendants after the plaintiff subpoenaed the alleged infringer’s ISP.

During discovery, one of the defendants agreed to provide her computer hard drives for forensic imaging.  The plaintiff’s expert examined each of the images of the hard drives for evidence of BitTorrent use, finding evidence on one drive that the “hard drive was repeatedly used to download BitTorrent files and also had BitTorrent software installed on the hard drive.”  He also determined that numerous files and folders associated with BitTorrent use had been deleted the night before the drive was turned over for imaging.  In addition, the expert determined that three additional drives had been connected to the defendant’s laptop computer, but had not been turned over for imaging.  As a result, the plaintiff filed a motion for sanctions alleging spoliation of evidence and perjury in the form of misrepresentations by defendants at their depositions and in their responses to various discovery requests.  The defendants argued that because the files were recoverable, spoliation had not occurred, but the contention that all the deleted files were recoverable was disputed by the plaintiff.

Judge’s Ruling

With regard to the recoverability of the files, Judge Dinsmore stated “Based on the relative credentials of the parties’ experts, the Court concludes that Patrick Paige’s testimony is more accurate and more credible. As such, the Court finds it highly likely that thousands of files were deleted and were unrecoverable. This confirms that Defendant Charles did not temporarily delete relevant evidence; instead, he permanently destroyed that evidence. As a result, Charles is liable for spoliation.”  He also noted that “even if the files that Charles deleted had been recoverable, this would not absolve Charles of liability” as the metadata associated with those recovered files would have been altered, which “would impede Plaintiff’s use of those files in proving its underlying claim of copyright infringement”.

As for the perjury claim, while finding some of the defendants’ answers not to constitute perjury, Judge Dinsmore failed to reach that conclusion regarding at least one of the drives that the defendant failed to disclose.  He stated that “At best, her omission of the XPS 600 from her discovery responses resulted from an egregious failure to reasonably investigate whether her interrogatory answers were complete. At worst, her failure to include the XPS 600 was a knowing and intentional omission that indicates that she did in fact commit perjury.”

Finding that “a sanction short of default would not appropriately address the goals of deterrence and punishment”, Judge Dinsmore recommended that the Court grant the plaintiff’s motion against the defendants for spoliation of evidence and perjury and enter default judgment against the defendants.

So, what do you think?  Was the recommendation of severe sanctions appropriate in this case?  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 One Study That Shows Potential Savings from Technology Assisted Review: eDiscovery Trends

A couple of weeks ago, we discussed the Discovery of Electronically Stored Information (DESI) workshop and the papers describing research or practice presented at the workshop that was held earlier this month.  Today, let’s cover one of those papers.

The Case for Technology Assisted Review and Statistical Sampling in Discovery (by Christopher H Paskach, F. Eli Nelson and Matthew Schwab) aims to show how Technology Assisted Review (TAR) and Statistical Sampling can significantly reduce risk and improve productivity in eDiscovery processes.  The easy to read 6 page report concludes with the observation that, with measures like statistical sampling, “attorney stakeholders can make informed decisions about  the reliability and accuracy of the review process, thus quantifying actual risk of error and using that measurement to maximize the value of expensive manual review. Law firms that adopt these techniques are demonstrably faster, more informed and productive than firms who rely solely on attorney reviewers who eschew TAR or statistical sampling.”

The report begins by giving an introduction which includes a history of eDiscovery, starting with printing documents, “Bates” stamping them, scanning and using Optical Character Recognition (OCR) programs to capture text for searching.  As the report notes, “Today we would laugh at such processes, but in a profession based on ‘stare decisis,’ changing processes takes time.”  Of course, as we know now, “studies have concluded that machine learning techniques can outperform manual document review by lawyers”.  The report also references key cases such as DaSilva Moore, Kleen Products and Global Aerospace, demonstrating with the first few of many cases to approve the use of technology assisted review for eDiscovery.

Probably the most interesting portion of the report is the section titled Cost Impact of TAR, which illustrates a case scenario that compares the cost of TAR to the cost of manual review.  On a strictly relevance based review of 90,000 documents (after keyword filtering, which implies a multimodal approach to TAR), the TAR approach was over $57,000 less expensive ($136,225 vs. $193,500 for manual review).  The report illustrates the comparison with both a numbers spreadsheet and a pie chart comparison of costs, based on the assumptions provided.  Sounds like the basis for a budgeting tool!

Anyway, the report goes on to discuss the benefits of statistical sampling to validate the results, demonstrating that the only way to attempt to do so in a manual review scenario is to review the documents multiple times, which is prone to human error and inconsistent assessments of responsiveness.  The report then covers necessary process changes to realize the benefits of TAR and statistical sampling and concludes with the declaration that:

“Companies and law firms that take advantage of the rapid advances in TAR will be able to keep eDiscovery review costs down and reduce the investment in discovery by getting to the relevant facts faster. Those firms who stick with unassisted manual review processes will likely be left behind.”

The report is a quick, easy read and can be viewed here.

So, what do you think?  Do you agree with the report’s findings?  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.

Expanded Sources of ESI Show That Crime Doesn’t Pay: eDiscovery Trends

I love the TV show Forensic Files – it amazes me how many different ways that law enforcement entities have to identify, catch and convict criminals.  With that in mind, here are a couple of stories that show how expanded sources of ESI can be used as evidence in criminal cases.

US court allows Google Earth image as evidence (by John Ribiero of IT News): An appeals court ruled on June 18 that Google Earth images, like photographs, can be used as evidence in a court.

The U.S. Court of Appeals for the Ninth Circuit ruled on an appeal by Paciano Lizarraga-Tirado, who claimed that he was on the Mexico side of the U.S.-Mexico border when he was arrested by U.S. agents years ago on charges of illegal reentry.  He insisted that the Border Patrol agents must have accidentally crossed the border before arresting him, according to court filings.

One of the arresting agents had, however, testified in court that she recorded the coordinates of Lizarraga-Tirado’s arrest using a handheld GPS device. To illustrate the location of those coordinates, the government introduced a Google Earth satellite image.  Lizarraga-Tirado claimed that both the satellite image on its own and the digitally added tack and coordinates were impermissible hearsay, invoking a rule that bars admission of out-of-court statements to prove the truth of the matters asserted.

However, since the relevant assertion wasn’t made by a person but by the Google Earth program, the Ninth Circuit said that it was joining other circuit courts that have held that machine statements aren’t hearsay. A machine could, however, malfunction, produce inconsistent results or have been tampered with. “But such concerns are addressed by the rules of authentication, not hearsay,” according to the court.  Since Lizarraga-Tirado only raised an objection on grounds of hearsay, but didn’t raise an authentication objection at trial or at appeal, his appeal was denied.

Woman staged ‘rape’ scene with knife, vodka, called 9-1-1, police say (by Brett Hambright of LancasterOnline):

Police officers acting on a 9-1-1 dispatch found overturned furniture, a knife and a bottle of vodka inside an East Lampeter Township home on March 10 where a woman claimed she was raped by a stranger at midnight.  However, further investigating – including a review of a Fitbit activity tracker – enabled the police to determine that the scene was staged and 43-year-old Jeannine Risley knowingly filed a false report.

The device, which monitors a person’s activity and sleep, showed Risley was awake and walking around at the time she claimed she was sleeping.  Also, snow on the ground revealed no bootprints or any signs of anyone walking outside the home, according to the affidavit. The hard-surface floor in the bedroom also showed no evidence of bootprints.

Risley is now headed to trial on three misdemeanor counts for prompting the emergency response and manhunt for an intruder that allegedly never was.

Thanks, as always, to Rob Robinson’s Complex Discovery site and Sharon Nelson’s Ride the Lightning site for the tips on the interesting ESI discovery stories.

So, what do you think?  Have you been involved in a case that turned on a unique source 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.

Plaintiff Ordered to Image its Sources of ESI, Respond to Disputed Discovery Requests: eDiscovery Case Law

In Electrified Discounters, Inc. v. MI Technologies, Inc. et al., Case No. 3:13cv1332 (RNC) (D. Conn. May 19, 2015), Connecticut Magistrate Judge Donna F. Martinez granted the defendant’s motion to compel the plaintiff ‘s responses to discovery and ordered the plaintiff to “image its sources of electronically stored information (‘ESI’), including its hard drives and QuickBook files”.

Case Background

In this trademark infringement case between competitors who sell replacement lamps for rear projection televisions and front projectors via online marketplaces, the defendants filed a motion to compel the plaintiff ‘s responses to discovery and argued that the plaintiff failed to issue a timely litigation hold and that the plaintiff’s production of ESI was “careless and indifferent.”  Specifically, the defendant stated that the plaintiff anticipated filing a lawsuit against the defendant in 2011, but that the plaintiff’s attorney admittedly did not counsel his client regarding its duty to retain relevant information until 2013 when the lawsuit was filed.

Additionally, in March 2015, the plaintiff’s company president testified in his deposition that he routinely deletes emails based on their age when his mailbox becomes full, that he deletes emails about once a month, that he continued to delete emails during this litigation and, on the day before his deposition, he deleted approximately 1000 emails.  Other records also were admittedly destroyed by the plaintiff company, which responded to the defendant’s request for plaintiff’s lamp sales that “[a]s part of its routine business practices, Electrified discards its records of lamps sales after approximately one year following payment.”

Judge’s Ruling

With regard to the defendant’s criticism of plaintiff’s failure to institute a timely litigation hold and its careless and indifferent production efforts after the duty to preserve arose, Judge Martinez stated “After reviewing the deposition testimony of Electrified’s witnesses, the court agrees that the defendant’s concern is well-founded.”  Those depositions included one plaintiff employee, who testified that his company uses a Quickbooks program, which contains detailed inventory and sales records dating back to 2006 as well as the company president, who also acknowledged that the Quickbook database contains inventory and sales information.

Citing Pension Committee and Zubulake, Judge Martinez stated that “The duty to preserve evidence is ‘well established.’”  With regard to the plaintiff’s admitted preservation failures, she stated “This cannot continue. Pending the final disposition of all claims in this action, plaintiff Electrified is ordered to preserve all documents, electronically-stored information, and/or tangible things that might be relevant to this subject matter or reasonably calculated to lead to the discovery of admissible evidence in this action.”  In an attempt to limit further spoliation of data, Judge Martinez stated that the plaintiff “shall image its sources of electronically stored information (‘ESI’), including its hard drives and QuickBook files.”

With regard to the twenty discovery requests in dispute, Judge Martinez granted the defendant’s motion to compel for each one, ordering the plaintiff to search and produce responsive ESI within 14 days of the order.  She also ordered the plaintiff “to show cause by June 2, 2015 why the court should not award defendant [requested] attorney’s fees incurred in the making of the motion to compel pursuant to Rule 37(a)(5).”

So, what do you think?  Are sanctions the next step in this case?  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.