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Electronic Discovery

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was last Monday, the second part was last Wednesday and the third part was last Friday, here’s the fourth part.

Common Mistakes

Here are some of the common mistakes associated with preparation for 30(b)(6) witness depositions:

Failure to Thoroughly Review the Deposition Notice

The rule requires that it describe the matters for examination with reasonable particularity. Thus, the witness need be prepared only for what is described. The deposing party may ask a witness questions that are outside the scope of the matters for examination but counsel for the deponent should be prepared to object and make clear that any answers provided are not binding on their client.

Designating the Wrong Representative or Failing to Designate Multiple Representatives

30(b)(6) requires that the organization “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.” In addition, the organization may set out the matters on which each person designated will testify and note that testimony is limited in scope to the issues of which they have personal knowledge.

If the potential witness does not have such personal knowledge it may be better to designate another witness or use multiple witnesses to discuss specific matters. The point is that the party upon whom the notice or subpoena is served is required to designate which individual or individuals are appropriate to testify on which topics.

Because testimony generated during a deposition has the potential to be admitted into evidence at trial, a witness testifying about a subject outside his or her direct knowledge could lead to damaging testimony at trial. Costly delays from resolving these issues at trial are one factor in the proposed rule changes discussed above.

Inadequate Preparation of Witness

Rule 30(b)(6) requires that a corporation do more than merely gather documents and produce a witness with general knowledge about the issues in the case. It must produce a witness who has been prepared.

But the rule does not require perfection; the mere fact that a witness can not answer every question on a certain topic does not mean that the corporation failed to comply with its obligation.

Still, the duty is significant and has even been described by one court as “onerous.” because, in the words of the Court, “… we are not aware of any less onerous means of assuring that the position of a corporation, that is involved in litigation, can be fully and fairly explored.” Prokosch v. Catalina Lighting Inc., 193 F.R.D. 633, 638. (D. Minn. 2000)

We’ll publish Part 5 – Specific Strategies to Consider – on Wednesday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was Monday and the second part was Wednesday, here’s the third part.

Proposed Rule Change

The current Rule provides little guidance on how much notice is required, how a 30(b)(6) deposition counts towards the limit and duration of depositions, the presumptive limit on the number of deposition topics and the process for objecting to, and resolving disputes about, the scope of a notice.

With that in mind, the Advisory Committee on Civil Rules began considering a variety of changes to the Rule beginning in April 2016. The amendment eventually put forth by the Committee says that “[b]efore or promptly after the notice or subpoena is served, and continuing as necessary, the serving party and the organization must confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify.”

Public comments on the proposed changes closed in February of this year and many major corporations voiced concern over these proposed changes. Over 100 organizations (including Ford, Microsoft, and Comcast) submitted a joint public comment letter to the committee objecting to the new language.

Specifically, these organizations voiced the following concerns:

  • An organization should be able to retain the exclusive right to identify Rule 30(b)(6) witnesses and the subject matters these witnesses will testify about without input from opposing counsel.
  • The rule needs to provide more guidance. For example, the language requiring counsel to confer about “the number and description of the matters for examination” is unclear and fails to lay out with specificity what the parties need to address prior to the deposition.
  • An amendment forcing the parties to confer would increase, rather than decrease, discovery disputes.

The Committee felt, however, that the amendment will not increase discovery disputes, but instead reduce these issues and streamline litigation. Their belief was that having the parties confer with each other prior to the deposition may help bring issues to the forefront so the court can handle the matters promptly rather than the current method of interrupting a deposition or even a trial to handle arguments about testimonial issues then.

The Draft Committee Note addresses some of the concerns that were raised and specifically reiterates that the “named organization ultimately has the right to select its designees,” and notes that “the amendment does not require the parties to reach agreement.”. The Advisory Committee’s official position paper can be found here. If approved by the Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme Court, the Amendment would go to Congress for final approval and become effective on December 1, 2020.

We’ll publish Part 4 – Common Mistakes – next Monday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Hold It Right There!: eDiscovery Throwback Thursdays

Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on March 22, 2012, when eDiscovery Daily was just over a year and a half old.  Even though the Federal Rules changes of 2015 have made sanctions more difficult to obtain with the “intent to deprive” standard in Rule 37(e) for significant sanctions for spoliation of ESI, failure to issue a litigation hold has been seen in the eyes of some courts as an intentional act, leading to adverse inference instruction sanctions or even dismissal or default judgment of the case.  So, implementing a solid litigation hold is as important than ever.  Also important is suspending any auto delete programs that are running for key custodians.  Seven and a half years ago, those were primarily associated with email auto delete programs, but it now is just as important for text message and other message programs as well, as illustrated by these three recent cases.  Enjoy!

When we review key case decisions every year related to eDiscovery, the most case law decisions are almost always those related to sanctions and spoliation issues.  Most of the spoliation sanctions were due to untimely or inadequate preservation of the data for litigation.  As noted in the historic Zubulake decision, Judge Shira Sheindlin ruled that parties in litigation have an obligation to preserve potentially relevant data as soon as there is a reasonable expectation that data may be relevant to future litigation.  However, even if the party reacts in a timely manner to take steps to preserve data through a litigation hold, but executes those steps poorly, data can be lost and sanctions can occur.  Here are some best practices for implementing a litigation hold.

The most effective litigation hold plans are created before actual litigation arises and applied consistently across all matters. While cases and jurisdictions vary and there are not many hard and fast rules on implementing litigation holds, there are generally accepted best practices for implementing holds.  Implementation of a litigation hold generally includes each of the steps identified below:

Identify Custodians and Suspend Auto-Delete Programs: As we have learned in many cases over the years, it’s important to completely identify all potential custodians and suspend any automatic deletion programs that might result in deletion of data subject to litigation.  As noted above, those auto-delete programs extend to more than just email these days, as we have seen several cases (especially lately) involving failure to suspend auto-delete programs for text and other messaging apps.

Custodians can be individuals or non-individual sources such as IT and records management departments.  To determine a complete list of custodians, it’s generally best to conduct interviews of people identified as key players for the case, asking them to identify other individuals who are likely to have potentially relevant data in their possession.

Prepare Written Hold Notice: Hold notices should be in writing, and should typically be written in a standard format.  They should identify all types of data to be preserved and for what relevant period.  Sometimes, hold notices are customized depending on the types of custodians receiving them (e.g., IT department may receive a specific notice to suspend tape destruction or disable auto-deletion of emails).

Distribute Hold Notice: It is important to distribute the notice using a communication mechanism that is reliable and verifiable. Typically, this is via email and litigation hold distribution and tracking mechanisms have become much more common in recent years. Distribution should occur only to the selected and specific individuals likely to have potentially relevant information, usually not company-wide, as not everyone will understand the parameters of the hold.  Believe it or not, notices with overly broad distributions have, in some cases, been deemed inadequate by courts.

Track Responses: It is advisable to require recipients of the litigation hold notice to confirm their receipt and understanding of the notice via a method that can be tracked (again, a litigation hold program can help automate this process as it can keep track of those who have acknowledged receipt of the hold notice as well as who hasn’t).  These litigation hold distribution and tracking programs have become preferable to any manual programs for tracking read receipt notifications through email.

Next week, we’ll discuss follow up on notices, releasing holds when the obligation to preserve is removed and tracking all holds within an organization.  Hasta la vista, baby!

So, what do you think?  Do you have a solid “hold” on your hold process?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was Monday, here’s the second part.

Initial Considerations

Notice that the rule requires simply that the responding party must designate someone to testify on behalf of the business entity and not that the requesting party can specify the identity or even the position in the organization of the witness. It is also commonly interpreted by responding parties that they are not necessarily required to produce for deposition the most knowledgeable person in the organization but rather, anyone of their choosing who agrees to testify.

Since this means the witness will testify as the organization’s knowledge, not his or her own personal knowledge on the subject of the deposition, the obligation to educate the witness on the requested topics falls to the organization.

The key for the requesting party to ensure specificity during the deposition is the crafting of the notice of deposition. It should include specific topics to be covered at the deposition which are “reasonably particular” as the rule states but not be so detailed that objections can be raised during the deposition that a question or questions being asked was not part of the deposition notice.

The timing of the 30(b)(6) deposition is important. If taken at the beginning of the case, it may helpful to pinpoint issues for further discovery, such as detailing policies or procedures that can help define requests for production.  But a deposition taken later, say after document productions, can fill in gaps or answer questions raised by the documents themselves or even identify further fact witnesses to answer those questions.

Once the deposition has begun and it becomes clear that the witness is not able to testify about the topics in the deposition notice, a decision must be made to establish either that this is not the proper  witness to testify on the requested issues or merely demonstrate that the witness is not knowledgeable on the issues. The difference is whether you intend to seek a motion to compel the appearance of a different witness or alternatively preclude the organization from introducing testimony on these areas at trial.

On occasion, the witness is evasive or even outright hostile. This may be simply because the IT person designated to testify is not well prepared as noted above. But it may also be that the witness is not happy about having to testify, feels they are overqualified to testify and are being forced to deal with people who know less than he does or, in some rare cases, is part of a corporate document management strategy designed to specifically preserve and produce documents in only one specific manner.  Here’s a link to the outline of a CLE session presented by Chris Ralston, a senior Commercial Litigation Partner at Phelps Dunbar in New Orleans, and me, dealing with such a hostile witness.

We’ll publish Part 3 – Proposed Rule Change – on Friday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Craig Ball is “That Guy” Who Keeps Us Up to Date on Mobile eDiscovery Trends: eDiscovery Best Practices

So many topics, so little time (again).  In our webcast about millennials and their impact on eDiscovery last week, Tom O’Connor and I spent a lot of time talking about how millennials are quick to embrace new technology and certainly there have been few technology areas of growth like mobile device use.  They’re everywhere and used by (seemingly) everybody and used (seemingly) all day long.  Texts are the new emails, which means they have considerable importance from an eDiscovery perspective.  So, who should you go to if you want to stay apprised of mobile eDiscovery trends?  Craig Ball is “that guy”.

In Craig’s excellent Ball in Your Court blog, his latest post from last week (Preserving Android Evidence: Return of the Clones?), discusses Google’s recently expanded offering of “cheap-and-easy” online backup of Android phones, including SMS and MMS messaging, photos, video, contacts, documents, app data and more.  In discussing this new capability, Craig states: “This is a leap forward for all obliged to place a litigation hold on the contents of Android phones — a process heretofore unreasonably expensive and insufficiently scalable for e-discovery workflows.  There just weren’t good ways to facilitate defensible, custodial-directed preservation of Android phone content.  Instead, you had to take phones away from users and have a technical expert image them one-by-one.

Now, it should be feasible to direct custodians to undertake a simple online preservation process for Android phones having many of the same advantages as the preservation methodology I described for iPhones two years ago.  Simple.  Scalable.  Inexpensive.”

Craig did acknowledge that because Android backups live in the cloud, he anticipates that, at first, there will be no means to download the complete Android backup to a PC for analysis, thus requiring restoring the data to a factory-initialized “clean” phone as a means to localize the data for collection (at least until Google hopefully provides a suitable takeout mechanism).  As a result, “examiners may revive the tried-and-true cloning of evidence to clean devices then collecting from the restored device” (just like they once did with computer drives).  “Everything old is new again.”

Whether it’s informing us of simpler, less expensive ways of preserving iPhone and Android data, or keeping us updated as Apple announces it’s doing away with iTunes, or educating us on geolocation data, or providing us an easy to understand Mobile Evidence Burden and Relevance Scorecard.  Or he’s providing us with an entire 24 page white paper on mobile device discovery titled Mobile to the Mainstream.  So, when it comes to best practices and useful tips regarding mobile device discovery, Craig Ball is “that guy” (see what I did there, Craig?).  ;o)

So, what do you think?  Are you struggling with mobile device discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

DOS and DON’TS of a 30(b)(6) Witness Deposition

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

30(b)(6) depositions are a large part of many ediscovery matters with many considerations about how to work with a witness, get the proper information and best practices for framing and answering questions.

But before we look at some of those issues, let’s take a look at the rule itself and define our terms so it’s clear what we’re talking about.

What is a 30(b)(6) Deposition?

Federal Rule of Civil Procedure 30(b)(6) (found here) permits a party to notice or subpoena the deposition of “a public or private corporation, a partnership, an association, a governmental agency or other entity and must describe with reasonable particularity the matters for examination.”

In response, the named organization “must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.” Once noticed, the designated witness “…. must testify about information known or reasonably available to the organization.”

In this paper, we will take a look at several aspects and best practices regarding 30(b)(6) depositions, including:

  1. Initial Considerations
  2. Proposed Rule Change
  3. Common Mistakes
  4. Specific Strategies to Consider
  5. Conclusions

We’ll publish Part 2 – Initial Considerations – on Wednesday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Nine is Divine! eDiscovery Daily is (Cloud)Nine Years Old!

Our “nine clouds” logo is making a one-day comeback!  If you read our blog yesterday, you probably noticed that our Throwback Thursday post was from the day eDiscovery Daily was launched.  That was nine years ago today!

We launched nine years ago on September 20, 2010.  Back then, we told you to not get “wild” with wildcards (and repeated that message yesterday).  And, we published our first case law post about a case where the spoliator of data was actually threatened with jail time –  our first of 701 posts about case law to date, covering more than 540 distinct cases!  We’ve published over 2,269 lifetime posts, and every post is still available on the site for your reference.  We’ve been around for so long and published so much, we don’t even bother with the six month milestones anymore!

And, as always, we have you to thank for all of that success!  Thanks for making the eDiscovery Daily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support – you make us feel like we’re on CloudNine!

As many of you know by now, we like to take a look back each anniversary at some of the important stories and topics during that time.  So, here are some posts over the last few months you may have missed.  Enjoy!

Here’s an evidence story that only a word geek like me can appreciate.

How many states have Security Breach Notification Laws? You might be surprised.

When does a party fight NOT to have a claim against them dismissed?  When they think it keeps their sanction possibility alive – at least in this case.

Phishing emails can be so deceiving these days.  Here’s an example of one and what you can do about them.

Do you still use the Enron data set for testing?  Maybe you shouldn’t.

Should a judge accept a Facebook friend request from a litigant?  Maybe not always.

If you’re going to fire your IT guy, you might want to change the passwords on your servers.  All 23 of them.

Significant spoliation sanctions may be more difficult to get now, but “it’s never over ‘til it’s over” as this case shows.

Just because you have a Motion to Dismiss pending doesn’t mean you can stay discovery until it’s decided.

Why do hackers hack?  For the money, of course.

Here’s a “cautionary tale about how not to conduct discovery in federal court”.  ‘Nuff said.

How many times do you have to spoliate ESI before you receive case termination sanctions?  In this case, more than three.

There are plenty of reasons that organizations experience a data breach: unpatched vulnerabilities in your software is only the latest one to worry about.

Not since Clubber Lang predicted “pain” in Rocky III has the state of legal tech consolidation seen such “carnage”.

Data privacy fines keep going up.  This proposed fine was for $230 million.  This one was approved for more than 20 times that.

If you keep track of Hollywood news, you probably already know this story.  But, you may not know the eDiscovery significance of the Kevin Spacey harassment cases.

Here are some of my observations regarding this year’s ILTACON conference using the theme of the classic spaghetti western The Good, The Bad and the Ugly.

Sure, we’ve been talking a lot the past couple of years about GDPR and CCPA.  But, “COPPA” just cost YouTube and Google $170 million.

In this case regarding spoliation of cell phone data, the judge recommended that the intent to deprive question be left up to the jury.  So did this one.

This is just a sampling of topics that we’ve covered.  Hope you enjoyed them!

Thanks for the interest you’ve shown in the topics!  We will do our best to continue to provide interesting and useful eDiscovery, cybersecurity and data privacy 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!  On to 10 years!  Do it again at ten!  :o)

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Don’t Get “Wild” with Wildcards: eDiscovery Throwback Thursdays

Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on September 20, 2010 – which was the day eDiscovery Daily was launched!  We launched that day with an announcement post, this post and our first case law post where Judge Paul Grimm actually ordered the defendant to be imprisoned for up to two years or until he paid the plaintiff “the attorney’s fees and costs that will be awarded to Plaintiff as the prevailing party pursuant to Fed. R. Civ. P. 37(b)(2)(C).”  (Spoiler alert – the defendant didn’t ultimately go to jail, but was ordered to pay over 1 million dollars to the plaintiff)…

Even before the 2015 Federal Rules changes, we didn’t see any other cases where the parties were threatened with jail time.  But I personally have seen several instances where parties still want to get “wild” with wildcards.  We even covered a case where the parties negotiated terms that included the wildcard for “app*” because they were looking for phone applications or apps (an even more extreme example than the one I detail below).  Check it out too.  And, enjoy this one as well!  It’s as relevant today as it was (almost) nine years ago!

A while ago, I provided search strategy assistance to a client that had already agreed upon several searches with opposing counsel.  One search related to mining activities, so the attorney decided to use a wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining”.

That one search retrieved over 300,000 files with hits.

Why?  Because there are 269 words in the English language that begin with the letters “min”.  Words like “mink”, “mind”, “mint” and “minion” were all being retrieved in this search for files related to “mining”.  We ultimately had to go back to opposing counsel and negotiate a revised search that was more appropriate.

How do you ensure that you’re retrieving all variations of your search term?

Stem Searches

One way to capture the variations is with stem searching.  Applications that support stem searching give you an ability to enter the root word (e.g., mine) and it will locate that word and its variations.  Stem searching provides the ability to find all variations of a word without having to use wildcards.

Other Methods

If your application doesn’t support stem searches, Morewords.com shows list of words that begin with your search string (e.g., to get all 269 words beginning with “min”, go here – simply substitute any characters for “min” to see the words that start with those characters).  Choose the variations you want and incorporate them into the search instead of the wildcard – i.e., use “(mine or “mines or mining)” instead of “min*” to retrieve a more relevant result set.

Many applications let you preview the wildcard variations you wish to use before running them.  For example, our CloudNine Review™ solution (shameless plug warning!) performs a preview when you start to type in a search term to show you words within the collection that begin with that string.  As a result, you can identify an overbroad term before you agree to it.

So, what do you think?  Have you ever been “burned” by wildcard searching?  Do you have any other suggested methods for effectively handling them?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Today’s Webcast Will Show You How to Think Like a Millennial When Addressing eDiscovery Needs: eDiscovery Webcasts

As we learned in Tom O’Connor’s recent five part blog series, millennials may be changing eDiscovery (depending on your point of view).  Regardless, eDiscovery is changing and millennials may be a BIG part of that change.  TODAY’S webcast will help you think like a millennial to address your eDiscovery needs.

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Thinking Like a Millennial in eDiscovery.  This CLE-approved* webcast session will discuss how evolving technology trends are impacting eDiscovery today and how to think like a millennial to stay on top of those developing trends. Key topics include:

  • Understanding Millennials and How They Differ from Previous Generations
  • Drivers for Millennials’ Thinking Today
  • How Litigation Support and eDiscovery Has Evolved Over the Years
  • Challenges Posed by BIG Data and Variety of Data Sources
  • Ethical Duties and Rules for Understanding Technology
  • Impact of Millennials on Legal Technology and eDiscovery
  • Your Clients May Have More ESI Than You Think
  • Recommendations for Addressing Today and Future Technology Challenges

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here – it’s not too late! Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn how the habits of millennials will impact your eDiscovery processes, this is the webcast for you!

So, what do you think?  Are you concerned about how the habits of millennials will impact your eDiscovery processes?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

The Cat and Mouse Game Between Data Privacy Regulators and Online Advertisers: Data Privacy Trends

You didn’t think companies that make a lot of their revenue in online advertising were going to just roll over when Europe’s General Data Protection Regulation (GDPR) was enacted to protect personal information, did you?  Apparently not, as this article discusses.

According to Legaltech® News (Is the GDPR Creating a Cat-and-Mouse Game Between Advertisers and Regulators?, written by Frank Ready), the browser company Brave alleged last week that Google was using a mechanism called “push pages” to work around restrictions on the sharing of personally identifiable information (PII) laid out by the EU’s General Data Protection Regulation (GDPR). It did so, Brave said, by assigning a distinct, almost 2,000 character-long code to user information shared with advertisers.

Google issued a response to the site Tom’s Hardware saying that it does not “serve personalized ads or send bid requests to bidders without user consent.”  But, Google’s ad practices are already facing an inquiry by the Irish Data Protection Commission (DPC), specifically with regards to how well they comply with “GDPR principles of transparency and data minimization.” However, regulators attempting to enforce the anonymization of user data could find it difficult to keep pace with companies looking for new ways to both comply with privacy requirements and protect the online advertising revenue that is central to their business.

Jarno Vanto, a partner in the privacy and cybersecurity group at Crowell & Moring, thinks part of the problem is most of the information that’s collected about users online nowadays could potentially qualify as PII.

“Ad tech companies are now trying to come up with ways on the one hand to comply, but then they are still stuck in the old world where they were able to collect all of this data because they could rely on this distinction between non-PII and PII, and that’s no longer really a valued distinction,” Vanto said.

Debbie Reynolds, founder of the data privacy and cyber response firm Debbie Reynolds Consulting, believes other companies will be looking towards the outcome of the Irish DPC’s inquiry with interest as they try to align their own data practices with compliance and profitability.  Still, she’s not expecting much in the way of new parameters surrounding what constitutes a unique identifier.

“I don’t think the regulators are going to try and go out of their way to create new words or new definitions,” Reynolds said.

Vanto said he thinks it could be a tough road due to the amount of resources that would have be leveraged in order to keep track of the practices employed by each technology company.  But Vanto also noted that there are tech-savvy privacy activists who have an interest in monitoring such activity, as well as rival companies that may also be inclined to keep their competitors moving towards the same kind of consent-based data sharing models that they are being driven to adopt into their advertising practices.

Just like Tom is always finding it difficult to stop Jerry, it appears that regulatory agencies – even with GDPR – are finding it difficult to stop the companies wanting to do everything they can to keep the advertising dollars flowing.  It will be interesting to see how this struggle plays out over time.

So, what do you think?  Will the regulatory agencies be able to find a way to protect personal information from advertisers?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Turner Entertainment

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.