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Electronic Discovery

Welcome to LegalTech New York 2015!: eDiscovery Trends

Today is the start of LegalTech® New York 2015 (LTNY) and, for the fifth year in a row, eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show. Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered. If you’re in the New York area, I encourage you to check out the show – there are a number of sessions (both paid and free) available and over 199 exhibitors providing information on their products and services.

While at the show, we will (also for the fifth year in a row!) be interviewing several industry thought leaders to see what they think are the significant trends for 2015 and, which of those are evident at LTNY. After the show, we will announce the series of thought leader interviews and identify when each will be published. Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 84 hits. So, there is plenty to talk about! Sessions in the main conference tracks include:

10:30 – 11:45 AM:

Information Management in the Age of the New Attorney

Some of the biggest changes currently in the legal IT environment are coming from the changing expectations and methods by which today’s attorneys want to work. As a new generation of attorneys rises to firm management, how does traditional information management need to change to accommodate the always-on, mobile, social, attorney? How can firms take advantage of new approaches to gain greater agility and better meet attorney – and client – demands for access to key information?

In this panel discussion, we will explore these topics with a panel of CIOs and IT Directors, and review what their organizations are doing to meet attorney and client expectations today as well as plans and ideas for the (near) future.

Speakers to include: Dan Carmel (Discussion Leader), Head of ECM Strategy and Solutions, HP Big Data; Marat Borodovskiy, IS Director, Prudential; Bill Koch, Director of Technology Services, Womble Carlyle Sandridge & Rice, LLP; Glenn O’Brien, Director, Electronic Discovery, Liberty Mutual Insurance; Usman Nayyar, Director of Applications and Technology Solutions, Proskauer.

Information Governance and E-Discovery – Working Across Disciplines to Improve Outcomes and Add Value

In conversations among thought-leading legal professionals and technologists, the subject of “information governance” features prominently. But how do these leaders define information governance, and why has the topic become so important? And what is the relationship to e-discovery?

In this program, panelists at the forefront of information governance will discuss the various ways in which their discipline relates to e-discovery. They will explain how a sound information governance initiative can help make e-discovery more efficient and effective, and less expensive. And they will help us understand how, in turn, a thoughtful and strategic e-discovery program can contribute back to the organization’s information governance. The panel will offer practical advice on breaking down silos and working across disciplines to create and enhance that information value loop.

Speakers to include: Maureen O’Neill (Discussion Leader), Senior Vice President, Discovery Strategy, DiscoverReady; Lauren Barnes, VP Records and Information Management, Credit Suisse; Juliet M. Hanna, Associate General Counsel, Fannie Mae; Julie Heller, VP & Global Head of eDiscovery Programs, Legal Operations Center, AIG.

Advice from Counsel: Case Studies of What’s Working in E-Discovery Today

Forget the theoretical. This is pure brass tacks. E-discovery practitioners are streamlining their processes, using advanced technology, and dramatically reducing the cost of e-discovery. In-house counsel, litigation support, outside counsel and service providers are all playing a part in transforming chaotic e-discovery procedures into a regular business process. This case study session will showcase what’s working today for corporations and law firms handling e-discovery matters large and small. Results from the 6th annual Advice from Counsel study on in-house e-discovery trends will supplement the case study discussions.

Speakers to include: Sophie Ross (Discussion Leader), Senior Managing Director, FTI Technology; Shari Aberle, Partner, Dorsey; Ari Kaplan, Principal, Ari Kaplan Advisors; Nicole Schaefer, Litigation Support Director, Janney Montgomery Scott.

Data Analytics for eDiscovery and Investigations – A Practical Approach

Data analytics on structured information (Oracle/SQL databases, mainframe data, etc.) is a specialized discipline that can help companies address issues related to litigation and sophisticated fraud and white collar crime. Forensic data analytics professionals must understand issues particular to the review of data contained in a structured format (i.e., enterprise financial systems and operational data stores). As with traditional computer forensic analysis on unstructured data, successful structured data eDiscovery is comprised of key work steps including identification, preservation, collection, processing, hosting, review, and production of structured data. This discussion will provide an overview and practical approach detailing the processes related to the analysis of structured data for eDiscovery and investigations.

Speakers to include: Tom Keegan (Discussion Leader), Principal Forensic Advisory Services, KPMG LLP; Elizabeth Asali, Litigation Counsel, GlaxoSmithKline; Jeffrey Greene, Shareholder, Greenberg Traurig; Wendy Predescu, Principal, KPMG LLP.

12:30 – 1:30 PM:

Taking TAR to the Next Level: Recent Research and the Promise of Continuous Active Learning — OPEN TO ALL

Three years ago, panelists Judge Andrew J. Peck and Maura R. Grossman introduced Technology-Assisted Review (TAR) to a standing-room-only crowd at LegalTech 2012. Since then, TAR—with its promise of substantial reduction in review costs—has entered the mainstream of high-volume discovery, both in the U.S. and around the world.

In 2015, the grand challenge is to make TAR even more accessible and more effective while addressing the real-world limitations of first-generation TAR products. Our panel will talk about the latest research on TAR protocols, focusing on newer methods like Continuous Active Learning, which have been shown to identify relevant documents more quickly, and to further reduce review costs. Discussion topics include:

  • How does Continuous Active Learning work, and how does it differ from earlier TAR protocols?
  • Which kinds of seed are most effective in TAR training, random or judgmental and why?
  • Are subject-matter experts required for TAR training, or can review teams do the job just as well?
  • How will the courts evaluate TAR and Continuous Active Learning? What kind of evidence is required to move best practices forward?
  • What kinds of savings can you expect from Continuous Active Learning versus other protocols? Should different protocols be used for different types of cases?

Join us for an informative hour focusing on the future of TAR for 2015 and beyond. Learn about the first peer-reviewed study comparing TAR protocols and how its findings may be applied in judicial and corporate settings. Pick up your free guide to Continuous Active Learning so you can learn more about this powerful new option for TAR review.

Speakers to include: John Tredennick (Discussion Leader), CEO and Founder, Catalyst Repository Systems, Inc.; Gordon V. Cormack, Professor, David R. Cheriton School of Computer Science, University of Waterloo; Maura R. Grossman, Of Counsel, Wachtell, Lipton, Rosen & Katz; Susan Nielsen Hammond, Records, eDiscovery & Forensics Counsel, Regions Financial Corporation; Honorable Andrew J. Peck, Magistrate Judge, United States District Court for the Southern District of New York.

2:00 – 3:15 PM:

Counsel’s Secret Weapon in the Information Wars: Governance Strategies and Tactics

Organizations face increasing pressure when responding to litigation, investigations, and regulatory compliance demands. Factors adding to this pressure are shortened time frames, increasingly disparate information, and tight budgets. It is essential to proactively prepare for these challenges with an information governance strategy that ensures your data can be accessed, analyzed, and understood quickly and cost effectively.

In this session, learn how to evaluate technology solutions, best practices for deploying these solutions in conjunction with IG policies, and how you can gain strategic insight from your data.

Speakers to include: Matt Levy (Discussion Leader), eDiscovery Subject Matter Expert, HP; Jason R. Baron, Of Counsel, Drinker Biddle & Reath LLP; Gareth Evans, Partner, Gibson, Dunn & Crutcher LLP; Marty Provin, Executive VP, Jordan Lawrence; Jason Van Volkenburgh, Associate General Counsel, Hunter Douglas.

E-Discovery Insourcing vs Outsourcing

This session will focus on the key issues attorneys, paralegals and litigation support staff should consider when deciding whether to insource or outsource e-discovery. While they may seem elementary, time, cost and complexity continue to be some of the greatest challenges e-discovery practitioners face today. Join us as our panel discusses some of the key elements to consider when deciding on an e-discovery solution.

Speakers to include: Edward Sohn (Discussion Leader), Global Director, Legal Managed Services, Thomson Reuters; Anthony J. Diana, Partner, Reed Smith; Glen McFarlane, Managing Director, JPMorgan Chase; Karin Scholz Jenson, Partner and National Co-Leader, E-Discovery Advocacy and Management Team, BakerHostetler.

The Predictive Coding Soundtrack: Rewind, Play, Fast-Forward

Over the last several years, predictive coding dominated conversations among e-discovery practitioners. But as we move into 2015, it seems the hype about predictive coding – and the too-good-to-be-true marketing promises – have quieted down. So what are we talking about now? What are organizations actually doing today with predictive coding? And how have these conversations about predictive coding impacted other aspects of e-discovery?

This program will take a look back at the promises made about predictive coding as these powerful tools came to the e-discovery market. And then our panel of experts – including corporate practitioners who actively use predictive coding – will discuss how the tools are being deployed today. They will explain what they have learned about the most effective ways to “train” predictive coding software; how to combine predictive coding with keyword terms and other methods of narrowing and searching data sets; the importance of statistical testing and validation in e-discovery generally; and developing a strategy for involving the other side (or not) in an e-discovery process. Finally, the panel will take a look towards the future, and explore how they expect to use predictive coding and other analytics tools going forward.

Speakers to include: Amy Hinzmann (Discussion Leader), Senior Vice President, Managed Review, DiscoverReady; Marla Bergman, Vice President, Associate General Counsel, Goldman Sachs; Elizabeth A. Jaworski, Director, Legal Operations, Motorola a Lenovo Company; Daniel S. Pariser, Partner, Arnold & Porter.

3:45 – 5:00 PM:

How to Take Advantage of the Cloud for eDiscovery

Today’s eDiscovery professionals must be able to quickly respond to requests and investigations, while reducing costs at the same time. But technology can be the stumbling block that prevents many from achieving these goals—especially when legal teams spend more time and money managing hardware and software than they spend on their litigation process. Fortunately, cloud environments offer a more secure and cost-effective way.

Join this panel session to learn how emerging cloud-based, self-service deployments can empower legal professionals to focus on managing the eDiscovery process while allowing the experts to manage the technology operations and security.

Speakers to include: Eric Crespolini (Discussion Leader), eDiscovery Subject Matter Expert, HP; Johnny Lee, MD, Forensic, Investigations & Dispute Services, Grant Thornton LLP; Robert Levy, Counsel, Civil Justice Reform and Law Technology, Exxon Mobil Corporation; Alan M. Winchester, Partner, Harris Beach PLLC.

E-Discovery Challenges in Government Investigations and Regulatory Matters

When dealing with the government in an investigation or regulatory matter, organizations face unique challenges around e-discovery. The lack of e-discovery expertise among many government legal professionals, and the lack of technical support and resources available to them, can make it difficult for companies to work with the government in connection with discovery requests. Other issues that compound this difficulty include:

  • The “cooperative” posture often associated with governmental investigations;
  • the increased transparency requested by the government;
  • the broad breadth and compressed timelines associated with many government requests; and
  • the government’s increasing tendency to request the use of specific discovery protocols, including technology assisted review.

In this program, the panelists will explore how organizations can overcome these challenges and more effectively handle discovery in government matters. They will discuss how to identify the scope of the government’s request and work to appropriately tailor a discovery solution that is reasonable, cost efficient, and defensive – and if necessary, educate the agency about e-discovery along the way. The program will also explain the obligations to preserve information relevant to a government matter, and the ramifications – including criminal liability – for spoliation of evidence. Finally, the panelists will discuss the role of predictive coding and other advanced analytics in government discovery.

Speakers to include: Matt Miller (Discussion Leader), Senior Vice President, Discovery Strategy; DiscoverReady, Josh Durham, Partner, Poyner Spruill LLP; Jill Griset, Partner, McGuire Woods; Allan Hsu, Director, Fannie Mae; Jerami D. Kemnitz, Senior Discovery Counsel – Global Head of eDiscovery, Wells Fargo; Michelle Spak, Associate General Counsel, Duke Energy Corporation.

Killing Two Birds With One Stone: Optimizing Information Governance for Easier E-Discovery

From protecting sensitive customer data from cyber threats, to complying with data privacy laws, corporate information governance projects are quickly becoming “must do” projects. How can legal teams leverage these information governance projects for their own e-discovery needs? What are some of the practical steps corporations can take to produce measurable benefits from information governance? How do these information governance projects impact the role of outside counsel?

Attend this session to hear corporate practitioners discuss best practices for implementing practical information governance programs and their impact on e-discovery.

Speakers to include: Jake Frazier (Discussion Leader), Senior Managing Director, FTI Technology; Michael Lisi, Director of Litigation Support, Fidelity Investments; Rachel Rubenson, Vice President-Global eDiscovery Counsel, Barclays; Joseph Steffan, Chief Privacy Compliance Officer, Morgan Stanley.

Achieving Global Consistency Across your eDiscovery Processes

As multi-national companies continue to manage a portfolio of litigation and investigations, it has become a priority for organizations to achieve global consistency in their eDiscovery processes. Key elements in putting in place a global approach to eDiscovery include defensible processes, predictable outcomes, reduced cost and gain in efficiencies.

This presentation will detail how to achieve global consistency and ideas on areas of focus including use of discovery playbooks, standard operating procedures, checklists, using a consistent technology workflow, and the role of outside service providers.

Speakers to include: Lucie Miller (Discussion Leader), Director, KPMG LLP; Denise Backhouse, Shareholder, Littler Mendelson; Kelly Clay, Senior Counsel and Director of Information Management, GlaxoSmithKline; Michelle Mattei, Associate Director, Healthcare Compliance, Medivation, Inc.; Jeff Sharer, Partner, Sidley Austin LLP.

In addition to these, there are other eDiscovery-related sessions today. For a complete description for all sessions today, click here.

eDiscoveryDaily will also be “tweeting” periodically throughout LTNY, so feel free to check out our updates at twitter.com/Cloud9Discovery.

So, what do you think? Are you planning to attend LTNY this year? 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 Awards Attorney Fees to Defendant After Delayed Production by Plaintiff: eDiscovery Case Law

In Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp., 1:14-cv-00151 (USDC W.D. Mich. Nov. 7, 2014), Michigan Magistrate Judge Phillip J. Green awarded some (but not all) of the attorney fees requested by the defendant after the plaintiff “made repeated promises to produce the subject documents”, but “failed to do so for nearly three months after the deadline for responding to Westport’s Rule 34 request” and “compliance was obtained only after Westport filed its motion to compel”.

Case Summary

In the reinsurance dispute described by the judge as a “document-intensive case”, the parties filed a Joint Status Report on May 7, 2014 in which they agreed “to make available” by May 28, certain identified documents without the need of a formal request for production. The deadline for voluntary production was extended at the plaintiff’s request to June 4 and the defendant completed its voluntary production of documents on that date. However, the plaintiff failed to do so.

The defendant sent the plaintiff inquiries as to the status of its production on June 10, 12 and 16. After receiving no response, on June 17, the defendant served a Rule 34 request for a production of documents, including those identified by the plaintiff for voluntary disclosure. The Rule 34 request incorporated the parties’ previous agreement to produce electronic documents in single page TIFF format with DII load file or native format within their original file structure. The defendant sent a reminder to the plaintiff on July 11 of their agreement to voluntarily produce the documents identified in the Joint Status Report and “specifically asked MMMIC’s counsel to advise if that understanding was incorrect”, which the plaintiff apparently never did.

The parties agreed to give the plaintiff an additional 14 days to produce responsive documents and, on August 1, the plaintiff responded to the Rule 34 request, indicating that “many documents [were] ready for production,” but also requested a protective order to prevent dissemination of the documents to persons not involved in the case. On August 6, the parties filed a joint proposed protective order regarding the handling of “Discovery Material”, but reminders from the defendant to the plaintiff to produce documents on August 6, 11 and 14 received no reply from the plaintiff, so on August 25, the defendant filed a motion to compel. After further back and forth, the parties agreed to an order on October 2, which noted that the production would be made no later than October 10. On October 13, the plaintiff finally produced 66,000 pages of documents in electronic format on three CDs.

Judge’s Decision

Judge Green stated that “MMMIC made repeated promises to produce the subject documents, beginning with the May 7, 2014, Joint Status Report, but it failed to do so for nearly three months after the deadline for responding to Westport’s Rule 34 request, and more than four months after the deadline for voluntary production set by the Court in the Case Management Order. Even then, compliance was obtained only after Westport filed its motion to compel, and on the eve of the scheduled hearing.

That constitutes a sufficient basis for awarding reasonable attorney’s fees and expenses to Westport.”

The defendant sought $10,399.75 in attorney’s fees and expenses under Rule 37(a)(5)(A), but Judge Green, after a detailed review of the hours expended (and factoring in a 7.5% discount), awarded $3,180.72.

So, what do you think? Should the fees have been awarded for the plaintiff’s late production? 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.

EDRM and ACEDS Partner Up: eDiscovery Trends

A couple of days ago, two of the most recognized organizations for promoting standards within the eDiscovery industry announced an alliance. EDRM and the Association of Certified E-Discovery Specialists (ACEDS) have announced a new “affinity” partnership. Among other things, that could mean savings to you if you want to be a member of both organizations.

As mentioned in the announcement, effective March 1, individuals have the option to purchase a combined membership in both EDRM and ACEDS at a reduced rate compared to joining each organization separately. Individual members of one group may now also renew their memberships for a prorated fee when they join the other at a discounted rate. Those who are organizational members of EDRM or Affiliate Members of ACEDS are eligible for special rates as well.

EDRM and ACEDS are also working together on educational content for the 6th Annual ACEDS E-Discovery Conference & Exhibition (slated this year for September 28-30 at the Gaylord National Resort & Convention Center in National Harbor, MD), with the conference featuring a session and member workshop presented by EDRM. The two organizations also will co-host four joint webcasts this year and a member of each organization will be joining the other’s Advisory Board. More potential additional member benefits and opportunities to come!

Seems like a natural fit. As part of our annual thought leader interview series, I’m scheduled to meet with both organizations next week at LegalTech® New York, so I’m sure each will have more to say about the new “affinity” partnership. Stay tuned!

So, what do you think? Is an alliance between EDRM and ACEDS good for 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.

Get a Jump on Information Governance Best Practices at LegalTech with this Boot Camp: eDiscovery Trends

Last year, the Information Governance Initiative (IGI), a cross-disciplinary consortium and think tank focused on advancing information governance was launched (we covered it here and here). Now, for New Yorkers and early birds to next week’s LegalTech® show, the IGI has partnered with Cardozo School of Law, in association with LegalTech New York, to bring you a one-day information governance boot camp next Monday, February 2.

The boot camp is designed exclusively for corporate legal, IT, RIM, and compliance professionals to help them begin implementing information governance (IG) programs in their organizations. The workshop will provide a forum for IG practitioners to exchange experiences, best practices, and ideas related to current and emerging issues with planning and executing an IG strategy while gaining knowledge from the IGI Executive Team. The boot camp runs from 9:30am to 3:00pm, with a cocktail hour afterward – the first of many cocktail hours that will happen next week at the show, no doubt. 🙂

Here are titles of the sessions during the boot camp (interspersed with networking/bio breaks and lunch at 12:15):

  • 10 – 11 a.m.: Identifying and Coordinating the Facets of IG
  • 11:15 a.m. – 12:15 p.m.: Forming & Running an IG Steering Committee
  • 1 – 2 p.m.: Taking Action: Quick & Dirty or Big Bang?
  • 2:15 – 2:45 p.m.: Technology Presentation

The boot camp is being held at Benjamin N. Cardozo School of Law, 55 Fifth Avenue (at 12th Street), Room 1008, New York, New York 10003. Registration starts at 9:00am, with an initial “Setting the Stage” session starting at 9:30am. The workshop registration fee is $795. Registration includes meeting materials; a reception following the boot camp; lunch; and breaks while the workshop is in session. The deadline for workshop registration is tomorrow – to register, click here. Hurry if you want to attend!

So, what do you think? Has Information Governance become a big focus in your organization? 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.

Plaintiffs Not Sanctioned for Late Production, Citing Their $29,000 Expense to Hire Experts to Assist: eDiscovery Case Law

In Federico et al. v. Lincoln Military Housing LLC, et al., 2:12-cv-80 (E.D. VA, Dec. 31, 2014), Virginia Magistrate Judge Douglas E. Miller, concluding that the defendants had not established that the plaintiffs had acted in bad faith when failing to meet production deadlines, declined to impose “any further sanction against Plaintiffs beyond the $29,000 expense associated with their expert’s production of the Facebook records”, except for a portion of the reasonable attorney’s fees associated with the original motion to compel.

Case Summary

In this class action for personal injury and property damage allegedly arising from mold in military housing, there had been numerous discovery disputes, including several motions for sanctions and reciprocal requests for costs and fees related to the parties’ alleged non-compliance. On June 4, 2014, the Court held the first hearing on discovery disputes, which came on the plaintiffs’ motions for Protective Orders seeking relief from the defendants’ requests for production, and certain subpoenas, during which the Court admonished the assembled plaintiffs present at the hearing to turn over related material to their attorney and permit counsel to determine whether it was relevant. The Court also advised the plaintiffs that there could be consequences if materials were not provided as required by the Rules.

After the plaintiffs’ supplemental productions were still considered incomplete by the defendant, the plaintiffs’ counsel stated they had engaged an outside vendor to provide estimates (which were then estimated to be $22,450, eventually rising to $29,000) and design a search protocol for electronic media. On July 10, the plaintiffs requested an emergency hearing to extend the July 17 production deadline, which the Court declined to do, advising plaintiffs’ counsel that if the plaintiffs were unable to produce any more responsive documents, they were required to advise the Court and defendants of the nature of any search they had performed. After the plaintiffs failed to meet the production deadline, the defendants filed a motion for sanctions to dismiss the plaintiffs’ claims for failure to comply.

In subsequent oral argument regarding the defendants’ motion, the plaintiffs indicated that they had engaged their IT consultant, who was present and described the ongoing process for searching and processing relevant records, primarily from social media. As a result, the Court deferred any ruling until after the consultant’s production. In September, Plaintiffs produced the results of their consultant’s search, including over 5,000 records from social media, and contended that any material omitted resulted from their clients’ inexperience in managing electronic production and not from bad faith or intentional destruction of evidence.

Judge’s Decision

Judge Miller used the Fourth Circuit’s four-part test to help decide whether to impose sanctions, as follows: (1) whether the non-complying party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4) whether less drastic sanctions would have been effective. With regard to the bad faith factor, Judge Miller stated:

“Defendants have failed to establish that any Plaintiff deliberately destroyed evidence known to be relevant, or otherwise acted in bad faith. While Plaintiffs’ delayed production should not have required Court action, they did eventually produce a nearly complete record of email and social medial posts and these materials were available to Defendants prior to most of the depositions. In addition, the limited relevance of the voluminous material produced suggests that any gaps in production were not likely intentional and do not prejudice Lincoln’s defense.”

As a result, Judge Miller ruled that the Court “declines to impose any further sanction against Plaintiffs beyond the $29,000 expense associated with their expert’s production of the Facebook records, but will award a portion of the reasonable attorney’s fees associated with the original motion to compel.”

So, what do you think? Should the plaintiffs have been sanctioned for their late production or was the judge’s ruling appropriate, considering the plaintiffs’ challenges and expense and efforts to comply? 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.

Guide for Making the Most of LegalTech: eDiscovery Trends

Editor’s Note: Believe it or not, LegalTech® New York (LTNY) starts in one week. The show can be overwhelming if you’re not prepared. A couple of weeks ago, Monica Bay wrote a terrific article in Law Technology News (Tips for Newbies to Survive LegalTech New York) which provides suggestions from several show veterans on how to get the most out of the show. That reminded me that Jane Gennarelli wrote a post on this blog three years ago with her own suggestions, so I’ve revisited it below. For best results, check out both articles and make your game plan from there! 🙂

It’s that time of year… LegalTech® New York is right around the corner. People are talking about it, making plans to get together, scheduling demos and meetings, and deciding which parties to attend. Newbies to the show are excited to go. More seasoned attendees are looking forward to seeing peers. It’s a great time to catch up with people and it offers a great opportunity to keep abreast of new industry trends and technology advancements.

Is there a downside? Well, yes, there is. Attending the show costs money (travel expenses, lost billings, or both). And more significantly, it eats up one of our scarcest resources: time. Some years I’ve questioned whether it was worth it. Other years, it’s been obviously valuable. Interestingly, the difference has not had anything to do with the show itself, but rather with my approach to it. So let me suggest an approach for making the most out of your next LegalTech show.

  1. Establish one or two primary objectives: Determine what you want to accomplish or what you want to learn, and make those your objectives. For example, maybe you don’t have experience with predictive coding and want to learn more about it. Or maybe it’s been awhile since you’ve looked at document review tools and it’s time to re-evaluate them. Identify specific objectives to focus on.
  2. Identify conference sessions to attend: Look at the conference schedule and identify sessions aimed at the objectives you’ve established. Put them on your calendar.
  3. Identify vendors with products and/or services aimed at your areas of interest: Review the exhibitor list, go to vendor web sites, and make a list of vendors of interest. Identify the exhibit booths you’d like to visit, and identify the vendors with whom you’d like to meet.
  4. Schedule demos and meetings: To ensure you meet your objectives, schedule meetings and/or demos with a few vendors.
  5. Prepare lists of questions: You will get the most out of meetings/demos with vendors if you are armed with a list of specific questions. For each of your objectives, identify the questions you should be asking.
  6. Keep good records: At the show, take good notes and collect contact information. You will be meeting a lot of people and it will be very difficult to remember everything you’ve learned if you’re not taking good notes!
  7. Take advantage of the networking opportunities: Get together with peers and talk about what they are doing, what tools they are using, and what approaches they’ve implemented. Introduce yourself to people you don’t know. Casual conversations in social situations can be invaluable!
  8. Commit to reporting on what you’ve learned: Before the show, commit to preparing a report on your findings. You are more likely to stay focused on your objectives if you’ve committed to reporting on them.

If you haven’t approached LegalTech with this type of plan yet, you may be surprised at what a difference it can make! Do the up-front leg work, enjoy the show, and make it a good use of your time!

So, what do you think? Are you ready for LegalTech? 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.

California Has an Opinion about Attorney Blogging Too – eDiscovery Trends

Last week, we reported on an updated proposed opinion in California that required that attorneys in that state better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required (after reporting on the original proposed opinion back in April). Now, the California State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) has turned its attention to another relatable topic for me – blogging (by attorneys, of course).

COPRAC has released Proposed Formal Opinion Interim No. 12 0006, which considers: Under what circumstances is “blogging” by an attorney subject to the requirements and restrictions of the Rules of Professional Conduct and related provisions of the State Bar Act regulating attorney advertising? At its Dec. 5, 2014 meeting, COPRAC tentatively approved Proposed Formal Opinion Interim No. 12 0006 for a 90 day public comment distribution, due to expire on March 23rd, 2015 at 5pm PST.

The opinion digest states:

1.     Blogging by an attorney is subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.

2.   A blog that is a part of an attorney’s or law firm’s professional website will be subject to the rules regulating attorney advertising to the same extent as the website of which it is a part.

3.     A stand-alone blog by an attorney that does not relate to the practice of law or otherwise express the attorney’s availability for professional employment will not become subject to the rules regulating attorney advertising simply because the blog contains a link to the attorney or law firm’s professional website.

The opinion also includes a statement of facts analyzing four examples of attorney blogs and which ones are subject to Rule 1-400 of the Rules of Professional Conduct of the State Bar of California. For more information and where to direct comments, click here.

So, what do you think? Should other states have similar rules about attorney blogging? 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.

Plaintiff Sanctioned for Late Production, But Not for Failure to Produce Data Held by Outside Vendor: eDiscovery Case Law

In Ablan v. Bank of America, 11 C 4493 (N.D.Ill. Nov. 24, 2014), Illinois Magistrate Judge Daniel G. Martin recommended that the defendant’s Motion for Sanctions should be granted in part and denied in part, recommending that the plaintiffs be barred from using any new information at summary judgment or at trial that was contained on eight CD-ROMs produced late, but recommending no sanctions for failing to produce or make available documents held by the plaintiff’s outside vendor.

Case Summary

The plaintiffs had been previously sued in state court by third party Tax Strategies Group, LLC (“TSG”), claiming that plaintiff Ablan violated their Financial Representation Agreement with TSG by interfering with TSG’s efforts to obtain financing for the acquisition of a group of CarMax dealerships. The plaintiffs filed this litigation against the defendants in July 2011, while the State Court Litigation was still pending (it was settled a few months later).

The defendants’ current motion was originally a motion for evidence spoliation based upon the plaintiffs’ representations that the documents they received from TSG in the State Court Litigation no longer existed. After the defendants filed their motion, “Plaintiffs located eight (8) CD-ROMs containing discovery produced to Ablan by TSG in the State Court Litigation.” On June 26, 2014, over three months after discovery closed, the plaintiffs produced to the defendants the TSG documents contained on the eight (8) CD-ROMs, which contained over 14,000 pages of documents.

With the documents produced, the defendants were no longer seeking sanctions for spoliation, but did seek sanctions based on the plaintiffs’ failure to timely produce and supplement and identified two alleged discovery violations by the plaintiffs: “(1) Plaintiffs’ failure to timely produce 14,000 pages of TSG documents contained on the eight (8) CD-ROMs in their possession and (2) Plaintiffs’ failure to produce 350,000 TSG documents in the possession of their vendor, Protek”. The defendants requested that the plaintiffs pay defendants’ attorneys’ fees in bringing the motion as well as the defendants’ expert costs associated with reviewing the recently located TSG documents; and that the plaintiffs be barred from relying on or introducing any of the recently located TSG documents at summary judgment or trial.

Court Recommendation

Stating that there is “no explanation in the record as to why Plaintiffs’ initial search failed to uncover the eight (8) CD-ROMs of TSG documents”, Judge Martin found “that Plaintiffs violated Rule 26(e) by failing to timely supplement their production in response to Defendants’ First Set of Requests for Production of Documents. Thus, Rule 37 prohibits Plaintiffs from using any new information on the eight (8) CD-ROMS”. He also found that “Defendants would be prejudiced if Plaintiffs were allowed to rely on new information disclosed for the first time in their untimely production of TSG discovery documents to defeat summary judgment or at trial” and recommended that they be barred from doing so.

Regarding the documents held by the plaintiff’s outside vendor, Judge Martin stated that, although (under Rule 34) parties must produce data within their custody and control (even when not in their physical possession), that the plaintiffs never had possession, custody, or control of the data and did not have the legal right to obtain the data. He disagreed with the defendant that the plaintiffs should be required to subpoena the TSG documents from the vendor, instead finding that “Defendants did not seek an extension of the discovery deadline so that they could subpoena the information from Protek” and stating that “Such a request would very likely have been granted”. Judge Martin also rejected the defendant’s request that the plaintiff pay the defendants’ expert costs associated with reviewing the recently located TSG documents, stating that “there is no evidence that Plaintiffs’ tardy production caused Defendants’ excess expert costs”.

As a result, Judge Martin recommended that the plaintiffs pay defendants’ attorneys’ fees in bringing the motion, but NOT the defendants’ expert costs associated with reviewing the recently located TSG documents, and that the plaintiffs be barred from relying on or introducing any of the recently located TSG documents at summary judgment or trial.

So, what do you think? Should the plaintiffs have had to produce data held by their outside vendor, or was Judge Martin correct in ruling that they did not have custody and control? 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.

The First 7 to 10 Days May Make or Break Your Case: eDiscovery Best Practices

Having worked with a client recently that was looking for some guidance at the outset of their case, it seemed appropriate to revisit this topic here.

When a case is filed, several activities must be completed within a short period of time (often as soon as the first seven to ten days after filing) to enable you to assess the scope of the case, where the key electronically stored information (ESI) is located and whether to proceed with the case or attempt to settle with opposing counsel. Here are several of the key early activities that can assist in deciding whether to litigate or settle the case.

Activities:

  • Create List of Key Employees Most Likely to have Documents Relevant to the Litigation: To estimate the scope of the case, it’s important to begin to prepare the list of key employees that may have potentially responsive data. Information such as name, title, eMail address, phone number, office location and where information for each is stored on the network is important to be able to proceed quickly when issuing hold notices and collecting their data. Some of these employees may no longer be with your organization, so you may have to determine whether their data is still available and where.
  • Issue Litigation Hold Notice and Track Results: The duty to preserve begins when you anticipate litigation; however, if litigation could not be anticipated prior to the filing of the case, it is certainly clear once the case if filed that the duty to preserve has begun. Hold notices must be issued ASAP to all parties that may have potentially responsive data. Once the hold is issued, you need to track and follow up to ensure compliance. Here are a couple of posts from 2012 regarding issuing hold notices and tracking responses.
  • Interview Key Employees: As quickly as possible, interview key employees to identify potential locations of responsive data in their possession as well as other individuals they can identify that may also have responsive data so that those individuals can receive the hold notice and be interviewed.
  • Interview Key Department Representatives: Certain departments, such as IT, Records or Human Resources, may have specific data responsive to the case. They may also have certain processes in place for regular destruction of “expired” data, so it’s important to interview them to identify potentially responsive sources of data and stop routine destruction of data subject to litigation hold.
  • Inventory Sources and Volume of Potentially Relevant Documents: Potentially responsive data can be located in a variety of sources, including: shared servers, eMail servers, employee workstations, employee home computers, employee mobile devices, portable storage media (including CDs, DVDs and portable hard drives), active paper files, archived paper files and third-party sources (consultants and contractors, including cloud storage providers). Hopefully, the organization already has created a data map before litigation to identify the location of sources of information to facilitate that process. It’s important to get a high level sense of the total population to begin to estimate the effort required for discovery.
  • Plan Data Collection Methodology: Determining how each source of data is to be collected also affects the cost of the litigation. Are you using internal resources, outside counsel or a litigation support vendor? Will the data be collected via an automated collection system or manually? Will employees “self-collect” any of their own data? If so, important data may be missed. Answers to these questions will impact the scope and cost of not only the collection effort, but the entire discovery effort.

These activities can result in creating a data map of potentially responsive information and a “probable cost of discovery” spreadsheet (based on initial estimated scope compared to past cases at the same stage) that will help in determining whether to proceed to litigate the case or attempt to settle with the other side.

So, what do you think? How quickly do you decide whether to litigate or settle? 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.

Payday Loan Company Sanctioned for Discovery Violations: eDiscovery Case Law

In James v. National Financial LLC, C.A. 8931-VCL (Del Ch. Dec. 5,2014), Delaware Vice Chancellor Laster granted the plaintiff’s motion for sanctions after determining that the defendant’s “discovery misconduct calls for serious measures”. However, the plaintiff’s request for a default judgment was not granted, but lesser sanctions that included attorneys’ fees and a ruling that the lack of information contained in the requested document resulted in an admission.

Case Summary

On May 7, 2013, the plaintiff borrowed $200 from the defendant, which does business in multiple locations in Delaware under the name Loan Till Payday LLC. The plaintiff needed the $200 to pay for rent and groceries. The loan agreement, which consisted primarily of boilerplate provisions, imposed onerous terms. It contemplated twenty-six bi-weekly payments of $60 with a final balloon payment of $260. The total repayments added up to $1,620, for a cost of credit of $1,420 and an APR of 838.45%. Yikes. The standard loan agreement signed by the plaintiff gave her sixty days after signing the agreement to opt out of the mandatory arbitration provision, which she did and filed a verified class action complaint against the defendant, claiming unconscionable lending practices.

During discovery, the plaintiff asked the defendant to provide information about loans it made, including the annual percentage rates (“APRs”). After the defendant moved for a protective order, the court ordered the defendant to produce certain categories of information, including the APRs. The defendant produced a spreadsheet containing some of the categories but not others. When the plaintiff checked the APRs against the few loan documents she had, they differed and the defendant’s principal ultimately agreed that the data contained errors. The court ordered the defendant to produce an updated spreadsheet (which they did) and an affidavit from an IT consultant attesting to the procedures used to populate the spreadsheet (which they did not), and the spreadsheet omitted information required by the court’s order. As a result, the plaintiff moved for default judgment sanctions against the defendant.

Court Ruling

Noting that “[t]he court expects Delaware counsel to play an active role in the discovery process, including in the collection, review and production of documents”, Vice Chancellor Laster granted the plaintiff’s motion for sanctions, but not the requested default judgment sanctions, stating that “National’s discovery misconduct calls for serious measures. Although I believe that entry of a default judgment would be warranted on these facts, I will not grant that remedy in light of the Delaware Supreme Court’s guidance about invoking the ultimate sanction and the availability of less punitive consequences.” Instead, the Vice Chancellor awarded attorneys’ fees and ruled that the lack of information contained in the requested document resulted in an admission.

So, what do you think? Should the default judgment sanction have been awarded? Please share any comments you might have or if you’d like to know more about a particular topic.

Click here to see our previous story about the Delaware Court of Chancery amending its Rules regarding discovery two years ago.

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.