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Electronic Discovery

Gartner Report Estimates eDiscovery Software Market was $1.8 Billion in 2014: eDiscovery Trends

The eDiscovery marketplace grew in 2014 with total software revenue reaching $1.8 billion worldwide, according to Gartner’s annual Magic Quadrant for E-Discovery Software report, released last week.

In the Market Overview section of the report, Gartner estimated that the enterprise e-discovery software marketplace was $1.8 billion in total software revenue worldwide in 2014, an increase of 10.6% from 2013, with a five-year compound annual growth rate (CAGR) of around 12%.

The report also identified several key trends impacting eDiscovery, including:

  • Increased migration to Office 365 by organizations;
  • Increased dialogue on how to preserve social and Web data, as well as data related to the Internet of Things (IoT);
  • Focus on agile and less expensive approaches to eDiscovery as opposed to traditional project-based approaches;
  • Trends continuing towards simplified pricing structures;
  • Increased deployment of eDiscovery software via SaaS models; and
  • Continued shake-up of the market, with Microsoft’s acquisition of Equivio, continued expansion of existing vendors and penetration into the market by startups.

As usual, the Gartner report also surveyed the landscape of eDiscovery vendors that met inclusion criteria, including at least $20 million in revenue, 50 or more clients, and ownership of the intellectual property and copyright to their software. This year’s report includes 20 vendors that meet these conditions (down from 22 vendors last year), and uses Gartner’s “magic quadrant” to rank them as leaders, visionaries, challengers, or niche players based on an analysis of the strengths and weaknesses. To be included in this report, a vendor also had to sell enterprise software licenses, a software appliance or SaaS conforming to Gartner’s definition of SaaS. Two new vendors were added to the quadrant this year while four were dropped (Gartner also identified four additional “vendors to watch”).

The report is available for purchase here on Gartner’s site, though, it can be obtained for free from several of the vendors named in the report.

So, what do you think? Are you surprised by any of the trends affecting the eDiscovery market? 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.

Is Skype a Telecom Company or a Software Company? The Answer Determines Whether They Have to Turn Over Call Records: eDiscovery Trends

Many of us have used Skype to communicate with friends or business colleagues (or maybe both). Can Skype be compelled to turn over those call records? Not if they can help it.

According to ZDNet, Skype, now owned by Microsoft, has been summoned to appear in court in Belgium after it refused to share call records to help a criminal investigation. A court in north Belgium demanded that messages and calls from Skype be provided to prosecutors under the country’s telecommunications laws. In Belgium, phone providers, like Deutsche Telecom and other mobile operators, are required to hand over data when requested.

Only Skype, based in Luxembourg, doesn’t see itself as a phone provider and, according to the article, a court spokesperson told Reuters that the judicial question is “whether Skype is a telecoms operator,” which could determine the company’s future status in the country. If Skype is classed as a telecoms operator, it will be forced to hand over the data and likely pay a fine. That would also mean opening up its networks to future wiretap and eavesdropping demands.

Last year, France referred Skype to prosecutors for investigation after failing to register as a telecom company in according with the country’s laws, stating that it had “on several occasions” asked Skype to “declare itself an electronic communications operator,” but it had not done so. French regulator Autorité de Régulation des Communications Électroniques et des Postes (ARCEP) argued that regardless of which device a voice communications came from, it constitutes a “telephone service.”

Skype had previously come under pressure for its links to China-based TOM Online, which some privacy groups believe could be used to spy on and censor its users. It will be interesting to see how effectively Skype can fight the efforts from two European companies to submit to regulations turn over its data on demand.

So, what do you think? Should Skype be considered a telecom company and should they be required to turn over call data to countries as requested? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Defendant Compelled to Produce Employees’ Personal Data in EEOC Dispute: eDiscovery Case Law
 

In EEOC v. DolgenCorp LLC d/b/a Dollar General, No. 13-cv-04307 (N.D. Ill. May 5, 2015), Illinois District Judge Andrea R. Wood granted the plaintiff’s motion to compel the defendant to produce electronically-stored information (“ESI”) containing personal information of the defendant’s conditional hires and complete versions of documents that the defendant previously produced with portions redacted due to purported lack of relevance. She also ordered the plaintiff to produce documents previously withheld due to privilege for an in camera review.

Case Background

In this employment discrimination case, the plaintiff filed a motion to compel the defendant to produce ESI regarding conditional hires, including electronic data with names, social security numbers, addresses, and telephone numbers. The EEOC also asked the court to reproduce certain ESI that Defendant redacted due to purported lack of relevance, contending that it needed the ESI to prove its allegations that criminal background checks for African-American applicants had a disparate impact and violated federal law. While admitting that the information was relevant to the litigation, the defendant argued that producing this information would infringe on the privacy rights of the applicants. With regard to the redacted documents, the defendant argued that the redactions should stay because the information was proprietary and not relevant to the litigation.

In turn, the defendant filed a motion to compel the plaintiff to produce certain statistical analyses during the plaintiff’s investigation to determine whether to issue a reasonable cause determination of discrimination – these documents were not produced as they were deemed deliberative process and attorney work product privileged.

Judge’s Ruling

With regard to the personal information requested by the plaintiff, Judge Wood stated that the plaintiff “has established that the personal information it seeks is relevant to this litigation. The requested data fields are unquestionably calculated to lead to the discovery of admissible evidence by permitting the EEOC and its experts more effectively to analyze the statistical impact of Dollar General’s use of criminal background checks. As explained above, the information sought will be used to link several large databases together, allowing the EEOC to perform its disparate impact analysis. It will also permit the EEOC’s experts to analyze whether non-racial demographic factors may have caused a statistical impact.”

As for the defendant’s motion to compel, Judge Wood stated that the “Court is unable to determine the legitimacy of the EEOC’s deliberative process and attorney work product assertions without reviewing the documents in question. Accordingly, the Court orders the EEOC to deliver copies of the withheld documents to the magistrate judge (who is now responsible for supervising discovery) for in camera review. Upon reviewing the documents along with the EEOC’s privilege log, the magistrate judge will determine the applicability of the asserted privileges in light of the governing legal principles.”

So, what do you think? Was the court correct in ordering production of the personal information, or should the privacy rights of the individuals have taken precedent? 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.

For a Successful Outcome to Your Discovery Project, Work Backwards: eDiscovery Best Practices

Based on a recent experience with a client, it seemed appropriate to revisit this topic. Plus, it’s always fun to play with the EDRM model. Notice anything different? 🙂

While the Electronic Discovery Reference Model from EDRM has become the standard model for the workflow of the process for handling electronically stored information (ESI) in discovery, it might be helpful to think about the EDRM model and work backwards, whether you’re the producing party or the receiving party.

Why work backwards?

You can’t have a successful outcome without envisioning the successful outcome that you want to achieve. The end of the discovery process includes the production and presentation stages, so it’s important to determine what you want to get out of those stages. Let’s look at them.

Presentation

Whether you’re a receiving party or a producing party, it’s important to think about what types of evidence you need to support your case when presenting at depositions and at trial – this is the type of information that needs to be included in your production requests at the beginning of the case as well as the type of information that you’ll need to preserve as a producing party.

Production

The format of the ESI produced is important to both sides in the case. For the receiving party, it’s important to get as much useful information included in the production as possible. This includes metadata and searchable text for the produced documents, typically with an index or load file to facilitate loading into a review application. The most useful form of production is native format files with all metadata preserved as used in the normal course of business.

For the producing party, it’s important to be efficient and minimize costs, so it’s important to agree to a production format that minimizes production costs. Converting files to an image based format (such as TIFF) adds costs, so producing in native format can be cost effective for the producing party as well. It’s also important to determine how to handle issues such as privilege logs and redaction of privileged or confidential information.

Addressing production format issues up front will maximize cost savings and enable each party to get what they want out of the production of ESI. If you don’t, you could be arguing in court like our case participants from yesterday’s post.

Processing-Review-Analysis

It also pays to make decisions early in the process that affect processing, review and analysis. How should exception files be handled? What do you do about files that are infected with malware? These are examples of issues that need to be decided up front to determine how processing will be handled.

As for review, the review tool being used may impact how quick and easy it is to get started, to load data and to use the tool, among other considerations. If it’s Friday at 5 and you have to review data over the weekend, is it easy to get started? As for analysis, surely you test search terms to determine their effectiveness before you agree on those terms with opposing counsel, right?

Preservation-Collection-Identification

Long before you have to conduct preservation and collection for a case, you need to establish procedures for implementing and monitoring litigation holds, as well as prepare a data map to identify where corporate information is stored for identification, preservation and collection purposes.

And, before a case even begins, you need an effective Information Governance program to minimize the amount of data that you might have to consider for responsiveness in the first place.

As you can see, at the beginning of a case (and even before), it’s important to think backwards within the EDRM model to ensure a successful discovery process. Decisions made at the beginning of the case affect the success of those latter stages, so working backwards can help ensure a successful outcome!

So, what do you think? What do you do at the beginning of a case to ensure success at the end?   Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court Untangles Form of Production Dispute with Curling Iron Manufacturer: eDiscovery Case Law

In Wilson v. Conair Corp., 1:14-cv-00894-WBS-SAB (E.D. Cal. Apr. 30, 2015), California Magistrate Judge Stanley A. Boone granted in part the plaintiff’s motion to compel production, by requiring the defendant to produce further ESI in native format if feasible or TIFF format with the associated metadata, as well as to produce associated metadata for its prior production if it had not already done so.

Case Background

In this product liability class action, the parties disputed the production format of the electronically stored information (ESI) provided by the defendant, as the plaintiff requested the ESI to be produced in native format or, alternatively, in TIFF format with accompanying metadata, whereas the defendant produced the ESI in PDF format, including for Excel files where the defendant produced them as PDF’s in order to redact information. The plaintiff contended that “data produced in the TIFF format is more efficient, cost effective, and better suited for use inside a database application and it will require additional work to get the data produced in PDF format into a usable state”.

At least some of the ESI in the defendant’s possession existed in a proprietary, third-party “STARS” database which could not be accessed by the plaintiff, so the dispute over those proprietary files was primarily one of plaintiff requested TIFFs with metadata vs. the defendant produced PDFs. In the Joint Statement, the defendant indicated that they were willing to produce all future documents in TIFF format. As for the Excel files, the plaintiff sought for them to be produced in native file format, which the defendant ultimately agreed to do during the hearing.

The plaintiff also sought documents and information pertaining to 45 models of styling irons, whereas the defendant argued that discovery should be, at most, limited to the two models used by the primary plaintiff in the case.

Judge’s Ruling

Judge Boone quoted Fed. R. Civ. P. 34(b)(2)(E) which includes statements that “A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request”, “If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms” and “A party need not produce the same electronically stored information in more than one form”.

As Judge Boone noted, “The Rules do not require a party to produce ESI in the form most helpful to the opposing party…Defendant is unable to produce the STARS data in its native format as it would be unreadable to Plaintiff. Defendant is not required produce the same electronically stored information in more than one form, Fed. R. Civ. P. 34(b)(2)(E)(iii). Defendant has agreed to produce any additional discovery in TIFF format, and that shall be the order of the Court.”

As for the metadata, Judge Boone, while noting that the defendant had “agreed to produce all further files with the associated metadata”, ruled that agreement didn’t go far enough. “When the potential relevance of metadata is not questioned then it is discoverable”, he stated, ruling that “For those documents already produced that are the subject of this dispute, Defendant shall produce the associated metadata if they have not already done so.”

The defendant was also ordered to “supplement their responses to Request for Production No. 18 for all forty-five models where the complaint is a failure of the power cord”, but the plaintiff’s request to require the defendant to produce additional discovery on the forty-five models was “denied at this time”.

So, what do you think? Could this dispute have been avoided with an agreement up-front? 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.

Norton Rose Fulbright’s Latest Survey Shows Majority of Companies use TAR, Collect from Mobile Devices: eDiscovery Trends

According to Norton Rose Fulbright’s Litigation Trends Annual Survey for 2015 released last week, companies in the United States continue to deal with, and spend more on litigation. From an eDiscovery standpoint, the survey showed that more than half of respondents preserve and collect data from employee mobile devices and use technology assisted review, and a clear majority of respondents still rely on self-preservation to fulfill preservation obligations for at least some cases.

Here are some interesting statistics from the report:

RESPONDENT PROFILE

Here is a profile of the respondents in the survey.

  • There were 803 total corporate counsel participants from 26 countries, 82% of which were either General Counsel (46%), Associate/Deputy/Assistant GC (26%) or Head of Litigation (10%). 52% of respondents were from the US.
  • Nearly two-thirds (65%) of the companies surveyed, were billion dollar companies with $1 billion or more in gross revenue. 41% of the billion dollar companies have revenues of $5 billion or more.
  • The respondents were fairly evenly distributed among industries, with Technology and Innovation (29%), Financial Institutions (28%) and Energy (20%) the top three industries participating.

LITIGATION TRENDS

The report provided some interesting findings with regard to the number and distribution of cases as well as corporate litigation budgets.

Litigation Case Counts and Distribution

  • 42% of all respondents indicated that more than 5 lawsuits/proceedings were commenced against them last year, in the US, that number was 55%. 13% of all respondents indicated that more than 50(!) lawsuits/proceedings were commenced against them last year, in the US, that number was 18%. The number of lawsuits filed against US respondents’ companies in the past 12 months was very stable, with no significant change since 2010.
  • 26% of all respondents indicated that they had one or more lawsuits with more than $20 million at issue, for larger organizations, that number was 40%.
  • Respondents were given a list of more than 20 categories of pending litigation their companies faced over the past 12 months, and asked to select the top three to five. Contracts (38%) and Labor/Employment (37%) matters received, by far, the most selections from respondents.
  • 25% of all respondents expect the number of legal disputes for their company to increase over the next 12 months.

Litigation Budgets

  • Among all survey respondents, the median litigation budget (excluding costs of settlement and judgments) is $1.2 million annually, while the mean litigation budget annually is $11.6 million.
  • In the US, 69% of organizations spend $1 million or more on litigation and 25% spend $10 million or more.
  • 32% of larger companies with $1 billion or more in revenue spent $10 million or more on litigation.

EDISCOVERY TRENDS

The report showed a majority of respondents preserve and collect data from employee mobile devices and use technology assisted review, and a clear majority of respondents still rely on self-preservation to fulfill preservation obligations for at least some cases. Heck, over a third of respondents even have cross-border discovery.

Cross-Border Discovery

  • 35% of respondents have conducted cross-border discovery within the last 12 months, with that number jumping to 54% for companies with $5 billion or more of annual revenue.

Mobile Device Preservation and Collection

  • 53% of overall respondents had to preserve and/or collect data from a mobile device, with 62% of US respondents doing so. 16% of all respondents reported having to preserve and/or collect data from a mobile device in 100% of their matters.

Self-Preservation

  • Overall, 74% of respondents rely on individuals preserving their own data (i.e., self-preservation) in at least some of their cases, with 29% relying on self-preservation in 100% of their cases.
  • When not relying on self-preservation, 62% of respondents say they depend on IT to collect data sources, with 22% relying on discovery vendors.

Technology Assisted Review

  • More than half (57%) of all respondents are using technology assisted review for at least some of their matters.
  • 79% of larger companies surveyed use technology assisted review, up from 43% two years ago.
  • Of those companies utilizing technology assisted review, 19% use it in all of their matters and 42% use it for half or more of their matters.

There are plenty more interesting stats and trends in the report, which is free(!). To download your own copy of the report, click here. To see how this year’s report compares with our coverage from two years ago, click here.

So, what do you think? Do any of those trends surprise you? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Tired of the “Crap”, Court Sanctions Investors and Lawyers for Several Instances of Spoliation: eDiscovery Case Law

In Clear-View Technologies, Inc., v. Rasnick et al, 5:13-cv-02744-BLF (N.D. Cal. May 13, 2015), California Magistrate Judge Paul S. Grewal sanctioned the defendants $212,320 and also granted a permissive adverse jury instruction that allows the presumption that the defendants’ spoliated documents due to a series of “transgressions” by the defendants and their prior counsel.

You’ve got to love an order that begins this way:

“Deployment of ‘Crap Cleaner’ software—with a motion to compel pending. Lost media with relevant documents. False certification that document production was complete. Failure to take any steps to preserve or collect relevant documents for two years after discussing this very suit. Any one of these transgressions by {the defendants} and their prior counsel might justify sanctions. Taken together, there can be no doubt.”

This case arose from the defendants’ alleged conspiracy with certain former plaintiff’s employees to take over the plaintiff’s company or, failing that, to divert their personnel, intellectual property and investors to a competing enterprise to commercialize the plaintiff’s alcohol tracking product known as the “BarMaster”. As early as May 2011, the plaintiff threatened Defendants with litigation for interfering with the plaintiff’s operations, ultimately filing suit in June 2013.

After the plaintiff’s discovery requests yielded just 422 pages produced by the defendants (including no communications solely between defendants and virtually no communications between defendants and any “co-conspirator” identified in the plaintiff’s requests) the plaintiff moved to compel further production and in September 2014, the court granted the motion and ordered that “(i) Defendants appear by September 23 for depositions regarding ‘document preservation and production,’ and (ii) the parties meet and confer in order to submit to the court by September 30 ‘a plan to retain an independent consultant to do a limited forensic collection and analysis of the media associated with each named defendant.’”

During the depositions, the individual defendants admitted having deleted numerous emails and text messages, failing to preserve devices that potentially responsive data was stored on, failing to search key media and failing to use obvious search terms in the searches that they did perform. Meanwhile, in October 2014, per the parties’ joint agreement, the Court selected the a digital forensics firm (at the defendants’ expense) to perform a forensic analysis of Defendants’ media and email accounts, with the order calling for the defendants to produce over 40 specified electronic media and email accounts for forensic imaging.

The digital forensics firm ultimately found 2,593 relevant documents totaling 12,467 pages – over 12,000 pages more than the defendants had previously produced and also determined that “four separate system optimization and computer cleaning programs were run” (including CCleaner, aka “Crap Cleaner”) on one defendant’s laptop. These programs were loaded onto his laptop and executed on July 22, 2014 – just six days after the filing of the plaintiff’s motion – and resulted in the deletion of “over 50,000 files”. For that and other apparent instances of spoliation of data among the defendants, the plaintiff requested monetary sanctions, an adverse inference instruction and terminating sanctions.

Judge’s Ruling

With regard to the duty to preserve, Judge Grewal stated that “Once upon a time, the federal courts debated exactly when the duty to preserve documents arises. No more. “The duty to preserve evidence begins when litigation is `pending or reasonably foreseeable.’”

Finding that the defendants “were on notice of foreseeable litigation well before spoliation occurred”, that their “spoliation occurred with the required culpable mindset” and that they “failed to produce thousands of documents that contained key terms that the parties designated as relevant to the litigation”, Judge Grewal ruled that “In sum, sanctions are warranted. The only question is what kind.”

Ultimately, Judge Grewal awarded “expenses and fees in this discovery dispute under Fed. R. Civ. P. 37(b)(2)(C)” of $212,320 and granted the request for an adverse instruction that the unproduced material may be deemed to support the plaintiff’s contentions. He also ruled that “Defendants’ prior counsel also must be sanctioned for improperly certifying Defendants’ discovery responses, and for subsequently failing to intervene even after ‘obvious red flags’ arose, such as Defendants’ failure to produce incriminating documents CVT obtained from their third parties.” Also, based on information that the defendants had “stiffed on the bill” for the digital forensics firm, Judge Grewal ruled that “Defendants shall show cause why they should not face further sanctions for this failure.”

Judge Grewal, however, declined to recommend terminating sanctions “in light of public policy and the sufficiency of monetary sanctions and an adverse jury instruction”.

So, what do you think? Should the request for terminating sanctions have been granted? 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 Some Useful Criteria for Evaluating Information Governance Vendors: eDiscovery Best Practices

Rob Robinson’s excellent Complex Discovery blog has been a terrific resource for eDiscovery information for several years now, covering everything from a “mashup” of eDiscovery market estimates to mergers, acquisitions and investments in the eDiscovery industry. His article from last week provides some useful information to organizations looking to select the right information governance vendor for their needs.

Rob’s article, 9 Subjective Considerations for Assessing Information Governance Vendors, considers more than just the hardware and software “nuts and bolts” to select the right information governance vendor. Rob notes that “just as there is much more to the utility of a knife than its edge (especially if you want to use it more than once), there are additional areas worthy of consideration in vendor selection if one is considering the long term strategic utility and viability of a vendor.” Rob uses the Free Dictionary’s definition of “viable” as “capable of success or continuing effectiveness”.

While he acknowledges that these nine criteria are not “all-inclusive”, Rob observes that they “may have an impact on {your} organization for many years to come”. Here are the criteria, along with questions that Rob asks for each (in italics):

  1. Technology = Demonstrated ability of product/service offering’s technical contribution to solving specific information governance challenges. Does the vendor’s technology appear to do what you need it to do? Can the technology be validated by some entity other than the vendor?
  2. Domain Knowledge = Demonstrated ability of an organization to utilize technology to solve specific information governance challenges. Does the vendor understand the domain you are operating in or do they just understand their technology?
  3. Awareness = An organization’s mindshare in the eyes of the client in relation to other organizations seeking to solve similar information governance challenges. Is the vendor known by information governance analysts, thought leaders, influencers, and information governance experts?
  4. Reputation = The confidence level customers have in the actual or perceived ability of an organization to solve information governance challenges viewed in relation to other organizations. Does the vendor have a reputation for being able to deliver on the expectations they set in a timely and accurate manner?
  5. Free Cash Flow = Net Income + Depreciation/Amortization – Changes In Working Capital – Capital Expenditure. Is the vendor able to meet financial commitments to support client needs and internal/external commitments?
  6. Clients = The number of active entities that have paid for information governance products/services in the current calendar year. Does the vendor have clients who have moved beyond the partner, master services agreement, and/or pilot phase of an engagement and are actually using the product/service in a production environment on a regular basis?
  7. Motive = The stimulus causing an organization to determine product/service strategies and tactics. Are vendor decisions made for the greater good of clients and vendor support staff or are they personality driven completely based on the personal objectives of the vendor ownership?
  8. Sincerity = Congruence or lack thereof between an organization’s stated market desires and actual leadership actions. Does the vendor do what they say they are going to do for both clients (external sincerity) and internal support staff (internal sincerity)?
  9. Employee Turnover = The rate at which an organization gains or loses staff. Is the vendor committed to its employees/contractors? Are vendor employees/contractors committed to the vendor?

Regardless how good an information governance vendor’s technology may be, if the vendor can’t demonstrate a knowledge of the industry and doesn’t have a proven track record for meeting client deadlines, an established client base or financial or organizational stability, they may not be the right choice for your organization for the long term.

Rob’s article has other key points and additional useful information, you can check it out here.

So, what do you think? Does your organization use one or more information governance vendors? If so, what criteria did you use to select them? 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 Rejects Defendants Motion Seeking Limitless Access to Plaintiff’s Facebook Account: eDiscovery Case Law

We haven’t had a good social media request case in a while – here’s one that compares to other cases we’ve covered in the past…

In the class action In re Milo’s Kitchen Dog Treats Consolidated Cases, Civil Action No. 12-1011 (W.D. Penn. April 14, 2015), Pennsylvania Magistrate Judge Maureen P. Kelly denied the defendants’ Motion to Compel Unredacted Facebook Data File and Production of Username and Password, disagreeing that the discovery of one highly relevant Facebook entry justified the defendants to be “somehow entitled to limitless access to her Facebook account”. Judge Kelly did order the plaintiff to produce previously produced redacted Facebook pages to the Court unredacted so that an in camera inspection could be conducted to confirm that the redacted information was truly privileged.

Case Background

In this case, based on the discovery of the posting on the plaintiff’s Facebook page in which she indicated that another brand of chicken jerky dog treats caused the harm to her dog, the defendants were of the belief that there could be other relevant information on her Facebook account. The defendants sought that information in their Second Request for production, asking the plaintiff to produce “the Facebook Data and Facebook Data File of Lisa Mazur and/or Lisa Pierwsza Mazur.” Despite the fact that the defendants’ request was unlimited and objected to by the plaintiff as inherently overbroad, she nevertheless responded to the request and provided 648 pages of Facebook data, albeit redacted. The Facebook data provided contained information indicating that Plaintiff purchased dog treats other than Defendant’s brand, as well as conversations the plaintiff had with others about the dog treat brand and the case.

The defendants argued that it was improper for the plaintiff to unilaterally decide what should be redacted complaining that the location of certain redactions were “suspect” and contended that they were entitled to unfettered access to Plaintiff’s Facebook account including her username and password. Citing Largent v. Reed, 2011 WL 5632688, (Pa. C.P. Franklin Co. Nov. 8, 2011), Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) and McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), suggesting that “these cases stand for the proposition that Facebook accounts are always subject to unrestricted access once a threshold showing of relevance has been made”.

Judge’s Ruling

Referencing Fed.R.Civ.P. 26(b)(1), Judge Kelly stated that “Rulings regarding the proper scope of discovery, and the extent to which discovery may be compelled, are matters consigned to the Court’s discretion and judgment. A party moving to compel discovery bears the initial burden of proving the relevance of the requested information.”

With regard to the three cases cited by the defendants, Judge Kelly noted that they were “factually distinguishable from the instant case and, in this Court’s view, do not require the limitless access to Plaintiff’s Facebook account data advocated by Defendants.” In Largent v. Reed, for example, the plaintiff had refused to provide any Facebook data, whereas the plaintiff here produced 648 pages from her Facebook account. Judge Kelly also observed that pictures of the plaintiff “enjoying life with her family” in Facebook would not near as relevant as they would be in a personal injury litigation like Largent.

Agreeing with the plaintiff’s argument, Judge Kelly stated that “having already provided Defendants with Facebook data relevant to the case, Defendants have failed to make any showing that further production of her Facebook records would result in the dissemination of any more relevant information than has already been provided.” She therefore denied the defendants motion to compel.

With regard to the redactions, the plaintiff had redacted a conversation with another purported class member in the case because their conversation revolved around “specific advice given by class counsel as to the litigation and its progress”. Because of the dispute over the validity of the redactions, Judge Kelly decided “out of an abundance of caution”, “that the best course is to have Plaintiff produce the claimed privileged documents to the Court so that an in camera inspection can be conducted. In this manner, any truly privileged information will remain protected and Defendants can proceed confident that they have received all the relevant and non-privileged information from Plaintiff’s Facebook data.”

So, what do you think? Was that the correct decision or should the judge have treated this case like the three cases cited by the defendant? 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.

Are You as “E-Savvy” as You Need to Be in Your “E-Disclosure” Process?: eDiscovery Best Practices

Craig Ball’s Ball in Your Court blog is always an excellent read, even when he writes it “across the pond” over in London. His latest post discusses how “fighting the last war” will eventually cost you when you come across an “e-savvy” opponent.

In Craig’s post, Girding for the E-Savvy Opponent, he mentions that he is presenting the keynote topic opening the Information Governance & eDiscovery Summit conference in London and how, while he was there, they were celebrating the 70th anniversary of VE day. I’ve heard him say before that “Generals are always prepared to fight the last war”, which he analogizes to technology and “e-disclosure” (which is what they call eDiscovery across the pond). Imagine if we were still trying use mounted cavalry to fight against armored tanks? It would be a disaster. As he notes, “In e-disclosure, we still fight the last war, smug in the belief that our opponents will never be e-savvy enough to defeat us.”

Craig notes that “Our old war ways have served so long that we are slow to recognize a growing vulnerability. To date, our opponents have proved unsophisticated, uncreative and un-tenacious.” He observes how our tech-challenged opponents “make it easy” and that he has “more than once heard an opponent defend costly, cumbersome procedures that produce what I didn’t seek and didn’t want with the irrefutable justification of, ‘we did what we always do.’”

But, that won’t always be the case. Craig predicts that “our once tech challenged opponents will someday evolve into Juris Doctor Electronicus.” When those tech challenged opponents evolve into e-savvy opponents, you can expect that they will (among other things): “demand competent search”, “insist on native production”, “compel transparency of scope and process”, “shrewdly use sampling to expose failure” and “demand competence, but not overreach”. With regard to that last point, Craig observes that “E-savvy counsel succeeds not by overreaching but by insisting on mere competence – competent scope, competent processes and competent forms of production. Good, not just good enough.”

Defenses against the e-savvy lawyer may include “the Luddite judge who applies the standards of his or her former law practice to modern evidence” or a strategy “to embed outmoded practices in the rules and to immunize incompetence against sanctions”. But, those won’t work forever. With virtually all evidence today “born electronically”, best practices for handling such evidence cannot be ignored forever. Someday, you will have to face e-savvy opponents on a regular basis, will you be ready?

As usual, Craig has numerous insightful observations in his post, I’ve referenced several of them here, but don’t want to fully steal his thunder, so I recommend you check out his post here.

So, what do you think? Is your organization still “fighting the last war” or are they prepared to deal with an “e-savvy” opponent? 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.