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Electronic Discovery

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.

Think Before You Hit Send (Unless You’re On Gmail and are Really Fast): eDiscovery Trends

Let’s face it, people make mistakes. However, a new feature from Google may help people who make those mistakes avoid the consequences – if they’re quick to address them.

As covered on Fortune.com (Gmail now officially lets you ‘Undo Send’ those really embarrassing e-mails, by Kia Kokalitcheva), Gmail, Google’s e-mail service, has officially added its “Undo Send” feature to the Web-based version of the service. Previously an experimental feature as part of Gmail’s “labs,” the feature lets users retract an e-mail after it’s been sent. Users can choose a time window between five and 30 seconds during which they’ll be able to recall that offending e-mail. So, if you’re modus operandi sometimes tends to be “ready, fire, aim”, you can avoid that critical mistake, if you notice it and act quickly.

Although Google actually first introduced the feature in 2009, it will now be located in Gmail’s general settings tabs instead of hidden in the “labs” section. However, users will have to manually enable it as the feature is not turned on by default. Google’s recently released email app, Inbox, also provides the “Undo Send” feature for those who need the safety net when on the go (which may be even more often than from the desktop).

Here’s a page with instructions on how to enable the “Undo Send” feature.

Imagine if this feature catches on with other applications, such as Microsoft Outlook? Or social media sites such as Facebook or Twitter? If this feature existed in these applications in the past, it might have helped many who may have wished that they could think after they send, including an all-pro NFL running back, a Chili’s waitress, the daughter of a former prep school head (who lost out on an $80,000 settlement), the social media manager of an NBA team and a former New York congressman (and former NYC mayoral candidate).

Regardless of which applications eventually have this feature, unless you’re very quick to catch your mistake, it’s still better to think before you hit send. Take a deep breath, look over the content, check to make sure you’ve selected the correct recipient(s), then hit send. Otherwise, you just might be the next social media disaster story covered on eDiscovery Daily!

So, what do you think? Do you think the “Undo Send” feature will catch on with other applications? 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.

Time for Another “Mashup” of eDiscovery Market Estimates: eDiscovery Trends

Rob Robinson’s Complex Discovery site is an excellent resource for discovery and general legal technology articles which we’ve profiled several times before. In the past two years, we have covered his compilations of various eDiscovery market estimates for 2012 to 2017 and for 2013 to 2018. Now, he has released his worldwide eDiscovery software 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 “Mashup” shares general market sizing estimates for the software area of the electronic discovery market for the years between 2014 and 2019.

You may have noticed that this compilation doesn’t include services – yet. Rob tells me he’s still working on that one and should hopefully be releasing that within the next week or so. When he does, we’ll cover it too.

Anyway, regarding the software estimates, here are some highlights (based on the estimated from the compiled sources):

  • The eDiscovery Software market is expected to grow an estimated 14.4% annual growth per year from 2014 to 2019 from $1.73 billion to $3.38 billion per year. Software currently comprises 30% of the market, which is expected to rise to 32% by 2019. Also by 2019, 78% of the eDiscovery software market will be “off-premise” – which includes cloud-based and other Software-as-a-Service (SaaS)/Platform-as-a-Service (PaaS)/Infrastructure-as-a-Service (IaaS) solutions.
  • Per Rob’s previous “mashups”, previous estimated growth rates for eDiscovery software were 15% annual growth per year from 2013 to 2018 from $1.5 billion to $3.31 billion per year and 16.78% annual growth per year from 2012 to 2017 from $1.49 billion to $2.78 billion per year. So, this year’s estimated 14.4% annual growth rate over the next five years reflects a bit of 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)

So, what do you think? Do you think the eDiscovery software 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.

Colorado Rolls Out Guidelines and Checklist for Discovery of ESI: eDiscovery Trends

From time to time, we’ve covered not only Federal eDiscovery rules, but also eDiscovery rules within the states as well. One of the states that has been slow to undertake any eDiscovery rulemaking activity is Colorado. However, on June 4, the U.S. District Court for the District of Colorado did publish new Guidelines Addressing the Discovery of Electronically Stored Information as well as a Checklist for Rule 26(f) Meet-and-Confer Regarding Electronically Stored Information (ESI).

In 2012, the US District Court for the District of Colorado convened an Electronic Discovery Committee and that Committee worked with the Corona Institute to develop, conduct, and analyze a comprehensive survey of practitioners in the District concerning their experiences with ESI. Nearly 2,000 responses were received and over 90% of respondents requested that the court assist practitioners in our District with eDiscovery by adopting some form of procedures or rules for ESI-intensive cases, with the largest group (43.8%) requesting guidelines to assist counsel. So, here they are!

Here is a brief summary of each document:

  • Guidelines Addressing the Discovery of Electronically Stored Information: The guidelines include commentaries that cover obligations of counsel, expectations for cooperation, standards of reasonableness and proportionality, proactivity with regard to ESI and treating the Rule 26(f) meet and confer as a critical step in the eDiscovery process, among other guidelines. The 14 page document also includes a preface and a list of reference materials (with links to several of them) and also references the checklist below as an attachment.
  • Checklist for Rule 26(f) Meet-and-Confer Regarding Electronically Stored Information: This comprehensive four page checklist covers a variety of topics that may need to be covered, depending on the nature and complexity of the matter, in the areas of preservation, identifying an eDiscovery liaison for each party, location and types of data and systems, proportionality and costs, search and filtering of ESI, phasing, production and privilege. These are useful guidelines for matters in any state (not just Colorado) or in Federal court as well.

The court’s guidelines are the result of two years of work and focus on cooperation between parties, clients and their attorneys. They’re guidelines, not rules, so it is still up to the court’s participants to decide to use them. While both the guidelines and checklist are dated September 2014 on the face of the document, they are noted as “appended” on the district court site and both files have the date “4-24-15” in the file name.

In October 2013, we covered Winston & Strawn’s handy interactive map of the US that enables you to click on any state and get a page with links to the actual rules for that state (or documents related to rules being considered). Back then and still today, Colorado is shown (in Orange) as a state that has not undertaken eDiscovery rulemaking activity to date. While these guidelines are not rules, they will hopefully have a positive impact in setting expectations for judges and attorneys in Colorado cases.

So, what do you think? Is this a positive step for Colorado? 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.

New York Supreme Court Sanctions Two Attorney Defendants for “Egregious Misconduct” in Spoliation of Data: eDiscovery Case Law

In HMS Holdings Corp. v. Arendt, et al., 2015 NY Slip Op 50750(U) (Sup. Ct., Albany County, May 19, 2015), the New York Supreme Court in Albany County ordered a mandatory adverse inference instruction 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 Defendant Lange to the New York State Committee on Professional Standards for attorneys.

Case Background

In this business litigation against the defendants who were former employees of the plaintiff, the parties to this case entered into a stipulation in September 2014 providing that defendants would forensically image all personal and work computers, flash or zip drives, and all mobile devices in their possession, custody or control. After the defendants provided the forensic images to the plaintiffs and their forensics expert for review, the plaintiffs’ expert alleged that defendants Curtin and Lange (both licensed attorneys) had intentionally and deliberately destroyed relevant electronically stored information. The instances of spoliation as alleged by the plaintiff’s expert were as follows:

  • Curtin used the Secure Erase wiping software on his laptop six times in September 2014, after the litigation hold had gone into effect – he claimed that he did so to improve the performance of his laptop;
  • Curtin also failed to produce a Toshiba hard drive (to which he was found to have copied a considerable volume of confidential defendant business materials the day before he terminated his employment with the defendant) claiming he could not find the drive;
  • “Shadow Copies” on Lange’s laptop revealed that there were documents in a directory of Lange’s hard drive containing the term “HMS” that no longer were present on September 15, 2014, when the computer was produced for forensic imaging;
  • Lange also failed to produce text messages from her iPhone 4, which she replaced in August 2014. She claimed that the store where she purchased it could not transfer data to her new phone; however, the plaintiff’s expert found data from her personal computer indicating that she had backed up her old iPhone to the computer after she purchased the new phone.

The plaintiffs requested sanctions against those defendants. In a Decision & Order dated March 2, 2015, the Court held as follows:

“Through the affidavit of its computer forensics expert and the documentary evidence submitted in support of the motion, HMS has made a prima facie showing that Curtin and Lange engaged in the spoliation of potentially relevant ESI with a culpable mental state during the pendency of this action.”

The court called for an evidentiary hearing, which was held on March 24, 2015, to hear the testimony of defendants and the parties’ computer experts.

Court’s Ruling

Noting the options that Curtin had selected with the Secure Erase software (“Erase” instead of “First Aid”, “Most Secure” instead of “Fastest”), the Court stated that it “does not find Curtin’s explanation for his use of Secure Erase to be worthy of belief.” Also, noting that Curtin “failed to disclose the existence of the Toshiba drive in response to HMS’s interrogatories” and “acknowledged the existence of the drive only after being confronted with HMS’s forensic proof of the same”, the Court ruled that it “does not find his explanation for failing to produce the Toshiba external drive to be credible.”

As for files deleted from Lange’s hard drive, the Court found “that Lange was under a duty of preservation at all pertinent times with respect to the alleged spoliation of ESI” from the laptop and found it to be “intentional and willful”. And, with regard to the iPhone, the Court concluded “that Lange knowingly gave false testimony regarding the destruction and disposition of her iPhone 4” when she testified that she disposed of her old iPhone on August 8, 2014, but actually backed it up on August 15, 2014.

As a result, the Court ruled:

“Given the willful and deliberate nature of defendants’ misconduct, imposition of a mandatory presumption is warranted. The trier of fact should be permitted to draw the strongest possible adverse inference from defendants’ bad faith and intentional destruction, deletion and failure to produce relevant evidence Thus, the trier of fact should be instructed as a matter of law that defendants engaged in the intentional and willful destruction of evidence, advised of the extent of each defendant’s proven spoliation, and permitted to presume that the evidence spoliated by each defendant was relevant to this action, would have supported HMS’s claims against the defendant and been unfavorable to the defendant.”

The court also awarded attorney fees, and forwarded a copy of the order regarding Defendant Lange to the New York State Committee on Professional Standards for attorneys.

So, what do you think? Was that the right amount to award? Or should the judge have awarded a lesser amount? Please share any comments you might have or if you’d like to know more about a particular topic.

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