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Electronic Discovery

Big Money for Stolen Health Records: eDiscovery Trends

Last month, we discussed how the number of data breaches was up in 2014, but the number of records breached was down. Of course, this year already got off to a rocky start when health insurance provider Anthem announced in early February that it had suffered what appears to be the largest breach ever in the health insurance industry, affecting about 80 million people. It turns out that those hacked health records are worth a lot in the black market.

In Fox Rothschild’s HIPAA, HITECH & HIT blog article Hacked Health Records Prized for their Black Market Value (that I found via Rob Robinson’s ever valuable Complex Discovery site), author William Maruca notes that the relative value of health records and financial data can be considerably more valuable than financial data alone.

Consider these sources:

As the Pittsburgh Post-Gazette reported, “The value of personal financial and health records is two or three times [the value of financial information alone], because there’s so many more opportunities for fraud,” said David Dimond, chief technology officer of EMC Healthcare, a Massachusetts-based technology provider. Combine a Social Security number, birth date and some health history, and a thief can open credit accounts plus bill insurers or the government for fictitious medical care, he noted.

Stolen health credentials can go for $10 each, about 10 or 20 times the value of a U.S. credit card number, according to Don Jackson, director of threat intelligence at PhishLabs, a cyber crime protection company and reported by Reuters last year (before the Anthem breach). Jackson obtained the data by monitoring underground exchanges where hackers sell the information.

According to an FBI bulletin from last April (again, before the Anthem breach), Cyber criminals are selling the information on the black market at a rate of $50 for each partial electronic health record (HER), compared to $1 for a stolen social security number or credit card number. EHR can then be used to file fraudulent insurance claims, obtain prescription medication, and advance identity theft. EHR theft is also more difficult to detect, taking almost twice as long as normal identity theft.

With so much at stake, it’s no wonder that the healthcare industry more breaches in 2014 (333) than any other industry, and that the potential cost for breaches in the healthcare industry is estimated to be as much as $5.6 billion annually. With numbers like these, expect data security and data privacy to continue to be hot topics within the legal technology community.

So, what do you think? Have you personally had your data stolen? 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.

Image is Not Only Everything, It Is Also Legally a Copy, Appeals Court Rules: eDiscovery Case Law

In Colosi v. Jones Lang LaSalle Americas, Inc., 14-3710 (6th Cir. Ohio 2015), the Sixth Circuit Court of Appeals affirmed the District Court’s judgment to approve a $6,369.55 bill of costs which included synchronization of deposition videos and imaging of hard drives that the defendant submitted after prevailing in the case.

Case Background

The plaintiff (and appellant) lost a wrongful termination suit against the defendant (and appellee), her former employer. As the prevailing party, the defendant filed a $6,369.55 bill of costs that the court clerk approved without modification. The plaintiff objected to most of the charges and moved the district court to reduce the bill to $253.50. The district court denied the motion, finding each cost reasonable, necessary to the litigation, and properly taxable under statute. The plaintiff renewed her objections on appeal to the Sixth Circuit Court of Appeals.

The plaintiff contested, as a matter of law, the recoverability of the costs associated with the synchronization of her deposition video and transcript, costs flowing from a cancelled deposition and transcription costs for the depositions of three other witnesses she deemed as unnecessary. She also challenged the district court’s decision to tax the cost of imaging her personal computer’s hard drive, arguing that “as a matter of law, ‘most electronic discovery costs such as the imaging of hard drives are not recoverable as taxable costs.’” She referenced the narrow interpretation of taxable costs in Race Tires America, Inc. v. Hoosier Racing Tire Corp to bolster her argument.

Appellate Court’s Opinion

The appellate court stated that “The taxing statute allows the prevailing party to recover ‘[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.’ 28 U.S.C. § 1920(2).” It also cited Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989), as follows: “Ordinarily, the costs of taking and transcribing depositions reasonably necessary for the litigation are allowed to the prevailing party. Necessity is determined as of the time of taking, and the fact that a deposition is not actually used at trial is not controlling.”

With regard to synchronization, the court stated “We discern no abuse of discretion in the award of synchronization costs. We previously construed § 1920(2) to embrace the cost of synchronizing a deposition video and transcript, provided the trial court finds the procedure reasonably necessary…It did here.” The appellate court also ruled that the plaintiff-appellant failed to “demonstrate that the district court abused its discretion in finding the other deposition-related costs necessary” and upheld those costs as well.

With regard to the imaging costs, the appellate court noted that “the statute includes no categorical bar to taxing electronic discovery costs. Rather, it authorizes courts to tax ‘the costs of making copies of any materials where the copies are necessarily obtained for use in the case.’ 28 U.S.C. § 1920(4). Thus, we first ask whether imaging a hard drive, or other physical storage device, falls within the ordinary meaning of ‘making copies.’”

Referencing the Oxford English Dictionary, the appellate court in upholding the imaging costs, rejecting the Third Circuit Court decision Race Tires as “overly restrictive”, stated:

“Imaging a hard drive falls squarely within the definition of ‘copy,’ which tellingly lists ‘image’ as a synonym. And the name ‘imaging’ describes the process itself. Imaging creates ‘an identical copy of the hard drive, including empty sectors.’…The image serves as a functional reproduction of the physical storage disk. From the image file, one can access any application file or electronic document on the hard drive with all that document’s original properties and metadata intact…If not actually made or formed in the image of the hard drive, we certainly regard it as such. Thus, a plain reading of the statute authorizes courts to tax the reasonable cost of imaging, provided the image file was necessarily obtained for use in the case.”

So, what do you think? Are courts ever going to apply a consistent interpretation of 28 U.S.C. § 1920(4)? 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 Rules that Australian Company’s Duty to Preserve Only Begins when US Court Has Jurisdiction: eDiscovery Case Law

In Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd., No. 1-11-cv-824 (S.D. Ohio Feb. 12, 2015), Ohio District Judge Timothy S. Black ruled that the duty to preserve for the defendant (an Australian company with offices and facilities only in Australia) did not begin until the complaint was filed in US courts in December 2011, denying the assertion of the intervenor/counter defendant that the duty to preserve arose in 2002.

Case Background

The intervenor/counter defendant alleged that the defendant refused to fully comply with the court’s October 2014 discovery order by failing to preserve, or satisfactorily search for and produce, evidence relating to the case and requested sanctions including striking the defendant’s counterclaims and what amounted to a summary judgment in favor of the plaintiff for $24.7 million.

With regard to the duty to preserve, the intervenor/counter defendant argued that the defendant’s duty to preserve began no later than October 1, 2002, about a month after the License had been signed, when an email from an executive at the defendant company questioned ownership of the assets and intellectual property associated with the license and the intervenor/counter defendant claimed that, from at least that date, the parties were in constant dispute over the existence of, and the defendant’s compliance with, the License.

The defendant argued that any duty to preserve under U.S. law could not have arisen before August 3, 2012, the date when the defendant answered the complaint and consented to U.S. jurisdiction, and, even if it had, it was not before the defendant was served on December 8, 2011. The defendant also noted that, throughout the nine years prior to Plaintiffs’ filing of this lawsuit, the plaintiffs continued to accept regular royalty payments of over $1.6 million for the first five years, took no action for another four years while the defendant continued to use the IP and never sent a dispute notice or termination notice during that time.

Judge’s Opinion

Citing In re Uranium Antitrust Litigation, 480 F. Supp. 1138 (N.D. Ill. 1979) in a footnote, Judge Black stated the following:

“The power of a U.S. Court to require compliance with U.S. discovery obligations does not arise until and unless the Court has jurisdiction.”

Judge Black noted that the defendant “is an Australian company with offices and facilities only in Australia”, that “Australian Law governs the License and was the anticipated jurisdiction for License-related disputes” and that “[n]o significant sales of Licensed Products were made into the U.S.” While acknowledging that the defendant “is not excused from an obligation to preserve evidence simply because it is a foreign company”, Judge Black ruled that “the only place litigation might at some point have been anticipated was in New South Wales, Australia—not Ohio or anywhere else in U.S. Accordingly, notwithstanding the fact that it may not have had jurisdiction over the PFCP until 2012, and in the absence of evidence that PFCP should have reasonably anticipated litigation in the United States any earlier, the Court finds that the duty to preserve began on December 8, 2011.”

So, what do you think? Do you agree that the defendant did not have a duty to preserve any earlier than the filing of the complaint? 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.

What Time Is It? That is an Important Question When it Comes to Your Document Collection: eDiscovery Best Practices

It may not be game time (hoo!), but the question of what time it really is has a significant effect on how eDiscovery is handled.

Our clients that process their electronically stored information (ESI) with CloudNine’s Discovery Client processing application (shameless plug warning!) generally find the wizard based application for processing and loading data to our review platform easy to use (as of this week, you can now process your data for loading in your own preferred review platform). But, for those few clients who have questions, we get one question WAY more than any other:

Why is the application asking me in which time zone would I like for my dates to be displayed?

Most ESI is stored in UTC (Coordinated Universal Time), which is the primary time standard by which the world regulates clocks and time. That’s not the same as Greenwich Mean Time (GMT), which is actually a time zone, not a time standard like UTC. The user’s operating system uses regional settings on the user’s system to convert the UTC time to the user’s local time zone. In many litigation cases, one of the issues that should be decided up front is the time zone to apply to the produced files. Why is it a big deal? Consider this example:

A multinational corporation has offices from coast to coast and potentially responsive emails are routinely sent between people in New York and Los Angeles offices. If an email is sent from one custodian in the Los Angeles office at 10 PM on June 30, 2013 and is received by another custodian in the New York office at 1 AM on July 1, 2013, and the relevant date range is from July 1, 2013 thru December 31, 2014, then the choice of time zones will determine whether or not that email falls within the relevant date range. Because the time zone is based on the workstation setting, the two employees could actually even be in the same office when the email is sent (if someone is traveling).

As noted in the recently released EDRM Data Processing Standards Guide (which we covered here), if the processing time zone for the case is not standardized across the entire collection, then the email metadata for custodians in the different time zones will be different – because the time (and, possibly, the date, as indicated in the example above) would be different. As a result, two copies of the same email (one in the New York custodian’s email collection and one in the Los Angeles custodian’s email collection), would fail to be de-duplicated. Not to mention that the different time zones would create a convoluted chronology or, as in the example above, a convoluted relevant date range.

As a result, most eDiscovery processing software (including ours) expects you to use a standard time zone for all files in the case. That can be the predominant time zone where the producing party is located – for example, an organization has offices throughout the country, but its headquarters is (along with most of the producing custodians) based in Houston, TX – so you might choose Central Standard Time as the time zone for the case. Or if the producing party is fairly evenly spread out across multiple time zones, you can choose to standardize to UTC.

So, what do you think? Have you had any date disputes in your eDiscovery projects?  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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Document Reviewers are People Too, Even in Canada, eh?: eDiscovery Trends

A couple of weeks ago, a $384 million class action was filed in Canada against professional services firm Deloitte LLP on behalf of hundreds of lawyers working at a document-review company it acquired last year. Even in Canadian dollars, that’s a lot.

As reported on by Canadian Lawyer’s blog Legal Feeds (Document review workers launch class action against Deloitte), on March 9, Canadian document review attorney Shireen Sondhi filed suit against Deloitte, which acquired ATD Legal Services in 2014, alleging document review attorneys were improperly classified as independent contractors (thereby exempt from protection under the Employment Standards Act).

Sondhi claims she and her colleagues were for years denied statutory labor protections, such as notice of termination. She also claims that they were also deprived of entitlements such as vacation pay and overtime – with even bathroom breaks docked from their overall compensation.

Despite the absence of statutory protections, the plaintiff alleges she and her class members agreed to the onerous conditions because they could ill afford to make demands of their employer amid Canada’s cutthroat legal jobs market.

“For many young lawyers, saddled with staggering student debt and desperate not to leave the field of law, document review is a last resort,” the statement of claim reads. “Deloitte is one of only a few document review companies in Ontario, and for many Class Members, represents their sole source of income.”

“These workers were supervised in Deloitte’s offices, they didn’t provide their own tools, or control their own schedules,” said plaintiff’s counsel Andrew Monkhouse in a statement. “It is simple logic that a lawyer, hired into a non-legal job, would be eligible for every protection under the law that non-lawyers are afforded.”

The conflict between Sondhi and her employer arose after Deloitte acquired ATD in January 2014. The claim alleges that, upon Deloitte’s acquisition, the new parent company imposed terms on document review workers that suggested a tacit acknowledgment of potential liability.

Deloitte required document reviewers to contract to an intermediary, Procom Consultants Group (also named in the suit), which then began withholding employment insurance (EI) and Canada Pension Plan (CPP) deductions. The claim alleges this intermediary served to minimize Deloitte’s liability.

Procom then charged Deloitte a fee amounting to $3 per hour – a charge passed on to the document reviewers, who received no benefit from the arrangement. All told, the fee, along with the EI and CPP deductions, reduced the take-home pay of document reviewers from $50 per hour to just over $40 per hour.

A major part of the dispute is whether document review is considered legal work. As reported in Law Times earlier this month, Sondhi says an amended Deloitte contract later took out a clause that deemed the document review work to be non-legal but described it as a “data processing and computer services” function that still doesn’t require LawPRO liability insurance. At that point, Sondhi says she sent an e-mail to the management team expressing the concerns she still had.

“I got this e-mail back from an employee at Procom saying, ‘Deloitte is not prepared to change the contract any further. Either you sign the contract or you consider your relationship terminated. Don’t come into the office tomorrow morning,’” she says. “So I wrote back and said, ‘I’m not comfortable with this. You haven’t answered my question, and I will not be signing the contract.’”

“I was shocked that Deloitte went as far as terminating me for vocalizing opposition to the Procom contract,” said Sondhi in a statement. “The entire situation reinforced to me just how great the power disparity was between Deloitte and I.”

So, what do you think? Does the class of document reviewers have a case? Should the work that document reviewers perform be considered legal work? 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. eDiscoveryDaily 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. eDiscoveryDaily 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 Agrees with Plaintiffs, Orders Provision for Qualitative Sampling of Disputed Search Terms: eDiscovery Case Law

In the case In Re: Lithium Ion Batteries Antitrust Litigation, No. 13-MD-02420 YGR (DMR) (N.D. Cal., Feb. 24, 2015), California Magistrate Judge Donna M. Ryu ordered the defendants to comply with the plaintiffs’ proposed qualitative sampling process for keyword search terms, citing DaSilva Moore that keywords “often are overinclusive”.

Case Background

In this multi-district litigation (MDL), the court ordered the parties to meet and confer to negotiate a protocol for the use of search terms in December 2014. The parties agreed upon an iterative process for the development and testing of search terms, summarized as follows:

  1. The producing/responding party will develop an initial list of proposed search terms and provide those terms to the requesting party;
  2. Within 30 days, the requesting party may propose modifications to the list of terms or provide additional terms (up to 125 additional terms or modifications); and
  3. Upon receipt of any additional terms or modifications, the producing/responding party will evaluate the terms, and
  4. Run all additional/modified terms upon which the parties can agree and review the results of those searches for responsiveness, privilege, and necessary redactions, or
  5. For those additional/modified terms to which the producing/responding party objects on the basis of overbreadth or identification of a disproportionate number of irrelevant documents, that party will provide the requesting party with certain quantitative metrics and meet and confer to determine whether the parties can agree on modifications to such terms. Among other things, the quantitative metrics include the number of documents returned by a search term and the nature and type of irrelevant documents that the search term returns. In the event the parties are unable to reach agreement regarding additional/modified search terms, the parties may file a joint letter regarding the dispute.

The parties requested the court’s guidance on a single remaining issue regarding their search term protocol: the steps the parties needed to take if they could not resolve a disagreement over a particular term. The plaintiff wanted the defendant to conduct a randomized qualitative sampling of documents retrieved by searching for any disputed terms, and to then allow the plaintiff to review the resulting documents following a privilege review.

The defendants objected to the proposed sampling provision “solely on the grounds that it will provide Plaintiffs with access to non-responsive, irrelevant documents that will be generated through the procedure.” They argued that the provision was unnecessary due to the detailed quantitative information that they agreed to produce regarding disputed search terms and because “there has been no showing that any Defendant’s production is incomplete.” The plaintiffs countered “that the proposed provision incorporates ESI best practices, including those embodied in materials developed by this Court” and contended that “the best way to refine searches and eliminate unhelpful search terms is to analyze a random sample of documents, including irrelevant ones, to modify the search in an effort to improve precision.”

Judge’s Opinion

With regard to the plaintiffs’ argument, Judge Ryu stated simply, “The court agrees. The point of random sampling is to eliminate irrelevant documents from the group identified by a computerized search and focus the parties’ search on relevant documents only. As the court noted in Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012), a problem with keywords ‘is that they often are overinclusive, that is, they find responsive documents but also large numbers of irrelevant documents.’”

Noting, however, that the defendants “raise a valid concern that the sampling protocol will result in the production of irrelevant information”, Judge Ryu ordered the following parameters to alleviate that concern:

  • At the hearing, the plaintiffs agreed that the defendants “may review the random qualitative sample and remove any irrelevant document(s) from the sample for any reason, provided that they replace the document(s) with an equal number of randomly generated document(s)”;
  • The parties also agreed that the defendants would conduct the qualitative sampling only after they had exhausted an agreed-upon quantitative evaluation process;
  • Judge Ryu ordered that irrelevant documents in the sample “shall be used only for the purpose of resolving disputes regarding search terms in this action, and for no other purpose in this litigation or in any other litigation” and that those irrelevant documents, as well as any attorney notes regarding the sample, “shall be destroyed within fourteen days of resolution of the search term dispute”;
  • Only one attorney from each law firm designated co-lead class counsel for Direct Purchaser Plaintiffs and Indirect Purchaser Plaintiffs (total of six attorneys) would be allowed to review the random sample;
  • The plaintiffs could invoke the random sampling process with respect to no more than five search terms per defendant group.

So, what do you think? Was the court right to order random sampling? 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.

Who is Investing in eDiscovery Companies?: eDiscovery Trends

As we have reported in the past, the eDiscovery industry is still growing at an impressive rate. One recent market report estimated that the global eDiscovery market is forecast to reach $15.65 billion by 2020. So, who is investing in the eDiscovery industry?

Leave it to Rob Robinson, once again, to compile some useful stats for us.

In a recent story on his excellent Complex Discovery blog titled A Short List of eDiscovery Investors, Rob (who last year put together a “mashup” of industry estimates for us) once again puts together one of his useful lists for us, providing a short list of 30+ investment organizations (actually 32, but who’s counting) that have funded eDiscovery-related companies between 2009 and today. This list is based on Rob’s “non-comprehensive” list of industry mergers, acquisitions and investment tracking that he has tracked for over 12 years (which we previously covered here and here). His list provides the name of the investing organization, their website URL and an example company in which they’ve invested.

The investor company names include words like “venture”, “capital”, “partners”, “management” and “group”. Sounds like investors to me. They have invested in companies from AccessData and Advanced Discovery to Xact and Zovy. Some eDiscovery providers have received investments from more than one investment firm.

So, if you want to see some of the companies that are helping the fuel the growth of the eDiscovery industry, check out Rob’s story here.

So, what do you think? Can you think of other growth indicators in the eDiscovery industry? 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. eDiscoveryDaily 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Daily Is Fifty Four! (Months Old, That Is)

Let’s party! Fifty four months ago today, eDiscovery Daily was launched. It’s hard to believe that it has been 4 1/2 years since our first three posts debuted on our first day, September 20, 2010. 1,129 posts later, a lot has happened in the industry that we’ve covered. And, yes we’re still crazy after all these years for committing to a daily post each business day, but we’re still rolling along and providing daily eDiscovery news and analysis while still covering our day jobs.

Twice a year, we like to take a look back at some of the important stories and topics during that time. So, here are just a few of the posts over the last six months you may have missed. Enjoy!

Thanks for your support! Our subscriber base and daily views are bigger than ever! And, we owe it all to you! Thanks for the interest you’ve shown in the topics! We will do our best to continue to provide interesting and useful eDiscovery news and analysis. And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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’s Motion to Quash Subpoena of Text Messages Granted by Court: eDiscovery Case Law

In Burdette v. Panola County, No. 3:13CV286-MPM-SAA (N.D. Miss. February 4, 2015), Mississippi Magistrate Judge S. Allan Alexander granted the plaintiff’s Motion to Quash Subpoena where the defendant subpoenaed the plaintiff’s text messages and call log records from his mobile provider.

Case Background

In this employment case, the defendant issued a subpoena to AT&T Subpoena Compliance Center for production of “[a]ny and all calls and text messages made from and received from [the plaintiff’s phone number] in the custody and control of AT&T for the dates of April 23, 2012, beginning 1:00 p.m. through May 27, 2012.” The defendants stated that the subpoena was necessary because plaintiff had avoided producing ESI that is relevant to the claims at issue and failed to maintain either the phone upon which he recorded a conversation the day of his discharge or the computer to which he later transferred the phone recording.

The plaintiff contended that the subpoena was overly broad, harassing, irrelevant, and potentially sought information protected by the attorney client privilege, as the requested text messages would undoubtedly include texts to and from his family members and possibly to and from his attorney. The plaintiff also noted that the period of time for which the text messages and calls were sought extended twenty days after the plaintiff was terminated.

Judge’s Opinion

Judge Alexander noted that the defendants “have offered no explanation for why these text messages and phone calls are relevant and has not agreed to limit the production of them in any way”. Despite the fact that the plaintiff failed to maintain the phone and computer, Judge Alexander determined that “neither of those two facts support the request for all of plaintiff’s text messages and phone calls before and for three weeks after his termination. If defendants desire to seek a spoliation instruction, they are permitted to do so, but defendants have failed to convince the undersigned that production of text messages and phone call logs will resolve any issue relating to the recorded conversation. The court will not permit irrelevant discovery that appears to be more harassing than productive.”

“Weighing the factors set out by the Fifth Circuit for quashing a subpoena, the relevance factor clearly weighs against production of the phone records”, stated Judge Alexander, finding that “the breadth of the request is entirely too wide even if a valid reason for the request had been established.” As a result, he granted the plaintiff’s request to quash the defendant’s subpoena.

So, what do you think? Was the defendants’ request overbroad? Or did they have a valid reason for the subpoena, given that the plaintiff failed to produce relevant 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. eDiscoveryDaily 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

When Blogging Interferes with Your Day Job, Which Do You Pick?: eDiscovery Best Practices

Though I write a daily blog, believe it or not, I do have a “day job”. I’m Vice President of Professional Services at CloudNine, and I also coordinate our marketing and software rollouts. Sometimes, I’m able to write my blog post during the work day; other times, I have to wait until the evening to do so, possibly as late as 8 or 9 PM, depending on my workload for that day. When blogging interferes with your “day job”, it can be difficult to do both.

I’m not sure that this was directly stated, but this conflict between day job and blogging may have been a factor in the discontinuation of IT-Lex last year and the scaling back of Ralph Losey’s excellent e-Discovery Team® blog from weekly to monthly a few weeks ago. It’s not always easy to keep a blog going when you have a busy career too.

In her excellent blog Litigation Support Guru, Amy Bowser-Rollins (see our profile of her from last year here) wrestled with that very dilemma. As she noted in her most recent post I Quit My Litigation Support Job, she has juggled four “jobs”, including: 1) Working full-time in a litigation support role at a law firm in Washington DC, 2) Working in a management position for a non-profit called Women in eDiscovery, 3) Teaching several courses in the Georgetown University Paralegal Studies program, and 4) Mentoring individuals interested in a litigation support career through her Litigation Support Guru blog.

As you can imagine, it was a struggle for Amy to do it all. Anyone can tell you that litigation support is a full-time job that can, at times, involve evening and weekend work. Not to mention that she was also dealing with a three hour daily commute to and from Washington DC. Though she noted that her work on the blog was most fulfilling (“I love helping others realize their dreams. I love mentoring others.”), her day job (and commute) was cutting into time to mentor others.

So, she quit her day job.

After having taken a sabbatical back in 2005, Amy decided to take another one now from her litigation support job. More power to her and, hopefully, that means more excellent blog posts to come!

As for me, last week was especially busy. I provided consulting assistance in different projects to clients ranging from search best practices to retrieve particular documents to review, de-duplication of potentially privileged documents in order to prepare a privilege log and identification of previously reviewed and classified documents in one collection to exclude them from review in another collection (to save review costs and ensure consistency). I managed to do all of that in four days, as I was off Friday for my birthday. 🙂 It’s not always easy, though, to attend to my day job and keep up with the blog.

When my boss at CloudNine approached me with a completed design and URL for our blog (which, of course, was called eDiscovery Daily), I initially balked at the idea of doing a daily blog. As you can imagine, I was a bit daunted by the effort involved of having to identify and write about different topics four to five days per week. Ultimately, nearly four and a half years later, it has proven to be personally rewarding for me as it forces me to keep up to date on trends and key case law in the industry (efforts which would otherwise go languishing when client projects heat up). And, my “day job” has also enabled me to share some of my experiences to you through best practices that I’ve learned through actual experiences with clients. I hope you have found our blog to be as useful as I have found it rewarding to write and I plan to continue to write it (and keep my “day job”) as long as I can.

I’m not going to go so far as to say “hug a blogger today”, but I think it’s important to recognize that most of them do this in their spare time, aside from their “day job”. I, for one, am grateful to all that do so in legal technology.

So, what do you think? Which blogs do you read? 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.