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Electronic Discovery

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.

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’s “Jazzy” Decision to Award Costs May “Bug” Plaintiff, But Defendant Doesn’t Mind a “Bit”: eDiscovery Case Law

Hey, I could have said if it doesn’t “fit”, you must acquit…

In Fitbug Ltd. v. Fitbit, Inc., Case No. 13-1418 SC (N.D. Cal. May 13, 2015), California District Judge Samuel Conti, throwing in a jazz reference during his opinion, ruled to tax over $63,000 in costs to be paid to the prevailing defendant in the case.

Case Background

In this trademark infringement case between two companies that manufacture and sell portable electronic fitness tracking devices, the Court granted summary judgment in favor of the defendant. Pursuant to that judgment, the defendant submitted a bill of costs, seeking $88,888.86 in costs (apparently, they like the number “8”). The plaintiff objected, and the Clerk ultimately taxed costs of $54,089.15.

Despite the Clerk of the Court’s substantial reductions to the defendant’s costs, the plaintiff believed that the amount taxed still included non-taxable items. As a result, the plaintiff filed a motion for review of costs allowed by the Clerk to ask the Court to either reject the defendant’s claimed costs entirely or, at a minimum, reduce them by a further $27,468.58. In turn, the defendant opposed any further reductions in its costs.

Judge’s Ruling

With regard to the plaintiff’s argument that because the defendant’s declaration supporting its bill of costs did not specifically state that its claimed costs are “allowable by law” (as required by Civil Local Rule 54-1(a)), Judge Conti began his analysis by getting the semantics out of the way (and providing a handy jazz reference to boot):

“While Fitbug apparently believes ‘[n]o other words can tell it half so clearly,’ the requirement a party say the ‘three little words,’ ‘allowable by law,’ is merely a reminder that the Court expects them to submit costs they believe are taxable, not a set of magic words necessary to receive any costs. Cf. Sarah Vaughan, Three Little Words, on Live at the London House (Mercury Records 1958), available at: https://www.youtube.com/watch?v=9WSZ6IRC-ys.” (yes, he even provided a YouTube link) “As the language of Fitbit’s declaration makes clear, Fitbit submitted these costs in good faith and understood that doing so was a representation to the Court and the Clerk that the costs were “allowed by law.” Now the Court must decide whether Fitbit was right or not. The Court declines to elevate form over substance to avoid making that decision.”

As for the specifics of the eDiscovery costs, Judge Conti acknowledged that “Section 1920 was enacted in 1853 and as a result does not speak directly on the taxability of electronic discovery costs”, but noted that in this “vacuum”, “courts have analogized the language of Section 1920(4), which authorizes the taxation of ‘[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case . . .,’ to a variety of electronic discovery expenses.” As a result, Judge Conti denied the plaintiff’s motion for review on these costs, deciding to tax $32,282.05 in data extraction and processing costs and another $4,466.91 in costs for production deliveries. Taken together with costs for deposition and video transcripts, photocopying and scanning and preparation of demonstrative exhibits, Judge Conti determined the total costs to be taxed to be $63,660.94.

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.

BTW, a link to the terrific Sarah Vaughan song referenced in the judge’s opinion can be found here.

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.

“Stealing Signs” in Baseball Takes on New Meaning in the Information Age: eDiscovery Trends

According to an article in the New York Times, one Major League Baseball team has defined a new way of playing “hardball” with the competition – hacking into the network of another team to capture closely guarded information about players.

Front-office personnel for the St. Louis Cardinals, one of the most successful teams in baseball over the past two decades, are under investigation by the F.B.I. and Justice Department prosecutors, accused of hacking into an internal network of my hometown team, the Houston Astros, to steal internal discussions about trades, proprietary statistics and scouting reports, among other competitive information.

According to law enforcement officials, investigators have uncovered evidence that Cardinals employees broke into a network of the Astros that housed special databases the team had built. The investigation is being led by the F.B.I.’s Houston field office and has progressed to the point that subpoenas have been served on the Cardinals and Major League Baseball for electronic correspondence.

In June 2014, the Astros claimed to have been victims of hackers who accessed their servers and published months of internal trade talks on the Internet. It was then that the team began working with the FBI and Major League Baseball security in an effort to identify who was responsible for the breach.

Law enforcement officials believe the hacking was executed by vengeful front-office employees for the Cardinals hoping to wreak havoc on the work of Jeff Luhnow, the Astros’ general manager, who had been a successful and polarizing executive with the Cardinals until 2011, credited with building baseball’s best minor league system, and with drafting several players who would become linchpins of the 2011 world champion Cardinals team.

Investigators believe that Cardinals personnel, concerned that Luhnow had taken their idea and proprietary baseball information to the Astros, examined a master list of passwords used by Luhnow and the other officials when they worked for the Cardinals. The Cardinals employees are believed to have used those passwords to gain access to the Astros’ network, law enforcement officials said.

Doesn’t Luhnow know that an insufficient password will leave you exposed? Or that almost thirty percent of data security incidents are due to human error?

That tactic is often used by cybercriminals, who sell passwords from one breach on the underground market, where others buy them and test them on other websites, including banking and brokerage services. The breach on the Astros would be one of the first known instances of a corporate competitor using the tactic against a rival. It is also, security experts say, just one more reason people are advised not to use the same passwords across different sites and services. It would not be a stretch (7th inning or otherwise) to see attacks like this happen among competitors in other industries. Or even between adverse parties in litigation.

Ironically, the Cardinals are accused of stealing the data last year, when the (dis)Astros were coming off three of the worst seasons in major league history. This year, they’re one of the best teams in baseball, at least for now. Hopefully (at least for Astros fans like me), they’ve improved their off-the-field cybersecurity protocols as well as they have improved on the field.

So, what do you think? Do you expect to see more breaches like this between competitors in various industries? 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 Almost Can’t Have a Divorce without Smartphone Evidence These Days: eDiscovery Trends

If you think the NSA is tough, hell hath no fury like a suspicious spouse scorned.

According to the American Academy of Matrimonial Lawyers (AAML) – not to be confused with the National Organization of Matrimonial Attorneys Nationwide (or N.O.M.A.N.) from the Coen Brothers movie Intolerable Cruelty (whose motto was “let N.O.M.A.N. put asunder”, get it?) – almost every divorce attorney works with smartphone evidence these days.

According to the AAML survey (press release here), a whopping 97% of members have seen an increase in divorce evidence being taken from smartphones and other wireless devices during the past three years. In addition, an almost universal number of 99% of respondents have cited a rising number of text messages being used in cases, while 67% have noted more evidence being gathered from apps. Not surprisingly, the top three apps for divorce evidence are also the most popular social media sites, with 41% citing Facebook, 17% choosing Twitter, and 16% identifying Instagram as sites where evidence was obtained.

“In the past, a suspicious spouse might have turned to a private investigator for this kind of detailed information, but nowadays most people willingly carry around some kind of wireless tracking device everywhere they go,” said James McLaren, president of the American Academy of Matrimonial Lawyers. “As with almost every aspect of our lives, smart phones and other wireless devices are having a big impact on the ways in which couples divorce.”

Overall, 97% of the attorneys cited an increase in the number of cases using evidence taken from smartphones and other wireless devices during the past three years, while 2% said no change and only 1% noted a decrease. The most common types of evidence gathered were cited by 46% as “texts,” while 30% said “emails,” 12% “phone numbers/call history,” 7% “Internet browsing/searches,” and “GPS” was noted by 4% of the respondents. In total, 99% cited an increase of cases using text messages during the past three years, while 1% noticed no change.

An increase in the number of cases using evidence taken from apps during the past three years was cited by 67% while 28% chose no change, and 5% noted a decrease. In addition to the top three apps listed for divorce evidence, the next selections included Find My iPhone and Snapchat at 6% each, 4% choosing Google Maps, Google+ at 3% and WhatsApp and Tinder each picked by 1% of the respondents.

So, if your divorce attorney is going to nail your spouse’s ass(ets), it will probably be with help from the ESI on his or her smartphone and social media accounts.

Once again, thanks for the tip from Sharon Nelson and her excellent Ride the Lightning blog!

So, what do you think? Do your cases include more ESI from smartphones? 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.

DESI Got Your Input, and Here It Is: eDiscovery Trends

Back in January, we discussed the Discovery of Electronically Stored Information (DESI, not to be confused with Desi Arnaz, pictured above) workshop and its call for papers describing research or practice for the DESI VI workshop that was held last week at the University of San Diego as part of the 15th International Conference on Artificial Intelligence & Law (ICAIL 2015). Now, links to those papers are available on their web site.

The DESI VI workshop aims to bring together researchers and practitioners to explore innovation and the development of best practices for application of search, classification, language processing, data management, visualization, and related techniques to institutional and organizational records in eDiscovery, information governance, public records access, and other legal settings. Ideally, the aim of the DESI workshop series has been to foster a continuing dialogue leading to the adoption of further best practice guidelines or standards in using machine learning, most notably in the eDiscovery space. Organizing committee members include Jason R. Baron of Drinker Biddle & Reath LLP and Douglas W. Oard of the University of Maryland.

The workshop included keynote addresses by Bennett Borden and Jeremy Pickens, a session regarding Topics in Information Governance moderated by Jason R. Baron, presentations of some of the “refereed” papers and other moderated discussions. Sounds like a very informative day!

As for the papers themselves, here is a list from the site with links to each paper:

Refereed Papers

Position Papers

If you’re interested in discovery of ESI, Information Governance and artificial intelligence, these papers are for you! Kudos to all of the authors who submitted them. Over the next few weeks, we plan to dive deeper into at least a few of them.

So, what do you think? Did you attend DESI VI? 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 Resolves Dispute Over Scope of Databases and Searches to be Performed: eDiscovery Case Law

After a week of reviewing previous cases we’ve covered this year with a couple of pop quizzes, we’re back in the saddle covering new cases…

In Willett, et al. v. Redflex Traffic Systems, Inc., No. 1:13-cv-1241-JCH/LAM (D.N.M. May 8, 2015), New Mexico District Judge Lourdes A. Martinez ordered the defendants to produce a spreadsheet referred of file folders, with information for the files on their virtual server(s), the plaintiffs to provide the defendant with a reasonable list of search terms, limited to the relevant time frame, parties, and issues of this case and for the defendants to perform the searches specified by the plaintiffs within ten days of receiving the searches.

Case Background

In this class action case, the plaintiffs alleged that the defendants engaged in nonconsensual automated calls to the plaintiffs on their cellular telephones in violation of the Telephone Consumer Protection Act in order to collect fines imposed by the City of Albuquerque for traffic violations and submitted requests for admission (RFAs) to the defendants to ask them to admit that they obtained the telephone numbers for specific plaintiffs from a skip tracing service. As for the plaintiffs’ document requests, the defendants produced an initial set of 19,000 Bates-labeled pages of documents in response to those requests, but the plaintiffs argued that the production was inadequate and moved to compel a larger production. In turn, the defendants filed their own motion, opposing the plaintiffs’ motion, arguing that the plaintiffs had refused to engage in a search term discussion regarding its database, which contained 1.6 terabytes of data.

The defendants also noted that the cost of processing their entire virtual server to enable more targeted searches would cost between $100,000 and $160,000, but if the parties were to agree to limit the data to be processed, such as by file type, keywords, and creation dates, the defendants might be able to perform those searches at a reasonable cost; otherwise, the cost could be shifted to the plaintiffs or split between the parties.

Judge’s Ruling

With regard to the defendants’ objections to the plaintiffs’ requests for admission, Judge Martinez found that “Defendants’ objections are without merit and should be overruled” and stated that “Defendants’ use of boilerplate, blanket objections are improper” and that the defendants’ “objections that these RFAs do not relate to the parties in this case are especially baffling since the requests specifically name the three Plaintiffs”.

As for the document requests, Judge Martinez ruled that she would “not order CWGP and Credit Control to conduct a search of the entire virtual server because it does not appear that that conducting a search of the entire 1.6 terabytes of data in the virtual server at a cost of $100,000 to $160,000 would be proportional to the likely benefit of such a search”. She also found that “limiting the search of the virtual server by file type, keywords, and creation dates, is a reasonable solution”. As a result, Judge Martinez ordered the defendants to produce a spreadsheet referred of file folders, with information for the files on their virtual server(s), the plaintiffs to provide the defendant with a reasonable list of search terms, limited to the relevant time frame, parties, and issues of this case and for the defendants to perform the searches specified by the plaintiffs within ten days of receiving the searches.

So, what do you think? Was the judge’s decision a reasonable compromise regarding the parties’ search disputes? 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.

Vacation Case Law Pop Quiz #2 Answers!: eDiscovery Case Law

I’m out of the office this week, taking the kiddos on a family vacation (can you guess where?). Instead of going dark for the week (which we almost never do), I decided to use the opportunity to give you a chance to catch up on cases we’ve covered so far this year with a couple of case law pop quizzes, sandwiched around a popular post from the past that you may have missed.

Yesterday, we gave you a pop quiz for the second set of cases. If you’re reading the blog each day, these questions should be easy! Let’s see how you did. Here are the answers.

1. Which case did the judge refer to as “Da Silva Moore Revisited”?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

2. In which case did the court grant the plaintiff’s Motion to Quash the defendant’s subpoena of text messages?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

3. In which case did the court uphold the award by the Clerk of the Court of over $57,000 in taxable costs?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

4. Which case(s) cited the Da Silva Moore case?

A. Rio Tinto Plc v. Vale S.A.

B. In Re: Lithium Ion Batteries Antitrust Litigation

C. Both cited Da Silva Moore

D. Neither cited Da Silva Moore

5. In which case was the request for spoliation sanctions against the defendant for failure to preserve video footage not only denied, but the defendant was granted summary judgment in the case?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

6. In which case did the appeals court affirm the District Court’s approval of a $6,300+ bill of costs which included synchronization of deposition videos and imaging of hard drives?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

7. In which case did the court rule that the duty to preserve for the Australian defendant did not begin until the complaint was filed in US courts?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

8. In which case was the defendant sanctioned for discarding a relevant computer?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

9. In which case did the court rule that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

10. In which case was the defendant sanctioned and ordered to reimburse the plaintiff $12,800 for the cost of conducting a forensic computer examination?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

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