Close
Enter your
text here

Electronic Discovery

300,000 Visits on eDiscovery Daily! – eDiscovery Milestones

While we haven’t served over 300 billion burgers like McDonald’s, we have provided something to digest each business day for over 43 months.  We’re proud to announce that on Friday, eDiscovery Daily reached the 300,000 visit milestone!  It took us a little over 21 months to reach 100,000 visits and just over 22 months to triple that to 300,000!  On to 500,000!

When we reach key milestones, we like to take a look back at some of the recent stories we’ve covered, so, in case you missed them, here are some recent eDiscovery items of interest from the past six weeks.

After 2,354 Public Comments, One Major Change to the Proposed Federal Rules: By the February 15 deadline for the comment period, no less than 2,354 public comments had been filed regarding the proposed Federal Rules amendments.  Much of the controversy related to Rule 37(e)(1)(B), which included a hotly debated amendment that the court may impose sanctions or order an adverse jury instruction, but only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith,” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.  Since then, Rule 37(e) has been modified, not just once, but twice.

Government Attorneys Have eDiscovery Issues Too: From a confidence standpoint, 73% of respondents feel as confident or more confident in their ability to manage eDiscovery in their cases.  But, 84% of respondents feel somewhat or not at all effective in their agency’s ability to deal with the challenges of eDiscovery and 80% of respondents feel somewhat or not at all confident that if challenged their agency could demonstrate that their ESI was “accurate, accessible, complete and trustworthy.  These and other survey findings are available here.

Cloud Security Fears Diminish With Experience: According to a recent survey of 1,068 companies conducted by RightScale, Inc., concern about cloud security diminish as users gain more experience using cloud-based services.  Learn more about organizations’ cloud habits here.

Daughter’s Facebook Post Voids $80,000 Settlement: As reported a few weeks ago on CNN, the former head of a private preparatory school in Miami lost out an $80,000 discrimination settlement after his daughter boasted about it on Facebook.  That’s why it’s important to think before you hit send.  Even if you’re still in grade school.

New California Proposed Opinion Requires eDiscovery Competence: If a new proposed opinion in California is adopted, attorneys in that state had 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.

Predictive Analytics: It’s Not Just for Review Anymore: One of the most frequently discussed trends in this year’s annual thought leader interviews that we conducted was the application of analytics (including predictive analytics) to Information Governance.  A recent report published in the Richmond Journal of Law & Technology (and discussed here) addresses how analytics can be used to optimize Information Governance.

How Do You Dispose of “Digital Debris”? EDRM Has Answers:  Those answers can be found in a new white paper discussed here.

Also, hackers took Typepad, our platform for hosting the blog, down for a bit.  But, we’re back and better than ever!

Want to get to know some of your litigation support colleagues better?  Leave it to Jane Gennarelli, who has provided profiles here, here, here, here, here and here.

We’ve also had 11 posts about case law, just in the last six weeks (and 296 overall!).  Here is a link to our case law posts.

Every post we have ever published is still available, so the blog has become quite a knowledge base over the last 43+ months.  Sometime this summer, we will publish our 1,000th post!

On behalf of everyone at CloudNine Discovery who has worked on the blog and other publications that have picked up and either linked to or republished our posts, thanks to all of you!  We really appreciate the support!  Now, on to the next topic.  🙂

And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Parties’ Failure to Cooperate Sparks Denial of Defendant’s Motion to Reconsider Court Ordered Discovery – eDiscovery Case Law
In Cactus Drilling Co. v. Nat’l Union Fire Ins. Co., 2014 U.S. Dist.. 11-14 (W.D. Okla. April 2, 2014), a largely contentious discovery phase was a major contributor to the decision of Oklahoma Chief District Judge Vicki Miles LaGrange regarding the defendant’s Motion to Reconsider, or Alternately, Motion for Clarification of the Court’s Order.

Discovery issues had plagued this litigation since the beginning, as both parties had repeatedly failed to communicate properly with one another, resulting in multiple interventions by the court. Upon the filing of the defendant’s Motion to Reconsider and a fourth request for continuation of the trial, Judge LaGrange held a hearing which discussed some of the discovery issues, among other things. The defendant stated at this hearing that some of the discovery documents requested by the plaintiffs—hard copies belonging to a key player who was no longer employed by the defendant—may have been inadvertently destroyed.

Pursuant to the hearing, Judge LaGrange instructed the parties to file status reports regarding the status of the discovery issues. While both parties accordingly filed a Joint Status Report soon after the hearing, once again there was a failure to communicate between parties, ultimately leading to the defendant’s filing of the Motion to Reconsider, or Alternately, Motion for Clarification of the Court’s Order.

This motion asked to reconsider an earlier court order that would allow discovery on the company’s document retention policies and litigation hold strategies, in order to investigate the circumstances under which the paper documents of the defendant’s former employee been destroyed. The defendant alleged that the court order was issued prematurely, and that it was irrelevant and not discoverable.

In response to the issue of the order being premature, it was found that this was not the case, as the defendant had known about the plaintiff’s request for this discovery at the time the parties filed the Joint Status Report, in which the defendant requested a ruling on whether they were required to produce discovery on their document retention policies along with a relevant witness for deposition.

The relevancy of the plaintiff’s discovery request was also addressed as such: “Plaintiff is entitled to inquire into the circumstances of the destruction of such relevant files while this litigation is pending, whether defendants took proper precautions, and whether such precautions were actually exercised by defendants’ employees. Thus, clearly a discovery request on defendants’ document retention and litigation hold practices and policies and whether such policies were followed with respect to [the former employee’s files] is relevant and discoverable.”

In conclusion, Judge LaGrange denied the defendant’s Motion to Reconsider, and ordered both parties once again to attempt to resolve the issues surrounding discovery and the defendant’s document retention and litigation hold practices in good faith.

So, what do you think? Should a party have the right to request discovery on document retention policies when relevant discovery documents are not obtainable? Should the cooperation—or lack thereof—between parties affect the court’s ruling on various motions? 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Contentious Discovery Dispute Process Leads to Ruling on “Reasonably Usable Format” for ESI – eDiscovery Case Law
In Castillon v. Corrections Corporation of America, Inc., No. 1:12-cv-00559-EJL (D. Idaho Feb. 7, 2014), Idaho District Judge Edward J. Lodge found a discovery dispute over the form of production of electronically stored information (ESI) in favor of the defendants, who had already produced the requested data in what was ruled a “reasonably usable format.”

This civil rights action displayed a demonstrated lack of cooperation between opposing counsel from the outset of the discovery phase. Following the first discovery disputes, it was noted that counsel had “refused to interact with each other reasonably and civilly. Many of the motions and briefs filed by both parties are full of hyperbole and contain unfounded accusations against opposing counsel.” While a discovery mediation had been somewhat successful in that both parties resolved many of the issues and filed a Stipulation as to certain discovery disputes, contention returned after just over one month, when the plaintiffs filed a Motion to Compel regarding information that was allegedly covered in the production produced by the defendants thus far.

Specifically, the plaintiffs sought to compel “all documents and communications including copies of the unit log books, shift logs, and other activity logs for all staff and contractors” employed by the defendants, as well as “all documents and communications including all records containing the terms of compensation and bonuses for any CCA employee with any supervisory authority” within a stipulated time period of January 1, 2009, to December 31, 2012. This discovery was categorized under Requests for Production Nos. 10 and 12, respectively.

The plaintiffs claimed that the information provided by the defendants regarding compensation and bonuses contained data for only one of the three named employees in supervisory capacities that they had requested, and further that the time frame of the information provided was insufficient. Additionally, the plaintiffs took issue with the format in which the documents were provided—specifically, searchable PDFs. The plaintiffs argued that “this is not a reasonably usable format and request that this information be re-produced in machine readable format and also request data covering a longer period of time.”

With regard to the first point of information concerning three specific supervisory employees, Judge Lodge ruled that the two employees for which data was not provided were outside the scope of discovery for this case. Specifically: “They do not work at ICC. They are not prison wardens. Therefore, Plaintiffs’ Motion to Compel improperly seeks information that Plaintiffs did not include in their discovery request. Plaintiffs’ Motion is therefore frivolous.”

Regarding the form of production for the documentation requested, the defendants pointed out that they had produced the data from their timekeeping database in searchable PDF format, which is the format that their system natively exports data. The defendants outlined the scenario that would allow them to produce ESI in the .csv (comma separated values) format requested by the plaintiffs as unduly burdensome and duplicative, as it would “require CCA to write a script that would then enable [the system] to export the time detail information Plaintiffs seek,” a process that would be “lengthy and daunting” and require “a team of between three and four people […] to expend three to four days creating the script, testing it, and confirming the accuracy of the data it produces.”

Judge Lodge ruled that because the defendants had already produced the requested data, they would not be required to produce it again in a different form. Further, it was noted that searchable PDF format is considered a reasonably usable form because “as the name implies, it can be easily searched.” The plaintiffs’ Motion to Compel was denied, though it was stipulated that if the plaintiffs agreed in writing to pay the defendants’ expenses in creating the script required to produce data in the requested format, they could approach the defendants with such a request.

So, what do you think? Should the term “reasonably usable form” cover any searchable format of ESI? Which party should be responsible for the costs of producing ESI in a specified format agreed on during discovery? 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

How to “Alert” Yourself to Interesting eDiscovery News and Announcements – eDiscovery Trends

Several people have asked me where I get ideas for topics to create a daily blog post on eDiscovery Daily.  There are several great resources out there – including law technology sites, compilation sites and other blogs – and I’ve mentioned many of them over the years and referenced their articles and posts in this blog.  But, there is another source – from a huge, well known company – that I scan daily to keep abreast of developments in the industry (and for good blog topic ideas).

Google has a very useful feature, called “Alerts”, which are email updates of the latest relevant Google results (web, news, etc.) based on a query (or queries) that you provide.  It’s great for monitoring a developing news story or keeping current on a competitor or your industry (as well as tracking news about your favorite celebrities or sports teams).  Here’s how it works:

  1. Go to the Alerts page on the Google site (here’s the link).  If you have a Gmail account and haven’t already logged into it, you’ll want to do so – it works best with Gmail, but doesn’t have to be tied to a Gmail account.
  2. Type the term or terms for which you want results into the Search query box.  You will then see a preview of the type of results you’ll receive to the right to see what you can expect to get in your alert.
  3. Select a Result type that you want to pull – valid choices are Everything, News, Blogs, Video, Discussions and Books.
  4. Select a Language to pull (default is English, but there are over 40 languages to choose from!).
  5. Select a Region to pull, which is essentially the same as country (default is Any Region, which will pull regardless of where the source is located).
  6. Determine How Often you want updates (default is Once a day, but you can receive emails with items “As-it-happens” – talk about “digital debris”! – or Once a week).
  7. Determine How Many, which is either Only the best results (default) or All results.
  8. Specify where to Deliver to – if you’re logged in to your Gmail account, that will be the default, but you can also specify some other feed.
  9. Click the button to CREATE ALERT.  The alert will then be created and be sent to your desired email address or feed, based on the parameters specified above.

You can also manage your alerts from this page and make adjustments to them or remove them outright if you don’t want to receive them anymore.

I have daily alerts set up for “eDiscovery” and “e-Discovery” (the results are sometimes different) as well as “saas” and “information governance”.  I receive the emails at the same time each day and usually go through them to see if there’s any notable news or articles worth reviewing.  Alerts typically include press releases, product announcements, articles and blog posts (including, of course, the daily post from eDiscovery Daily!).  Wouldn’t want to be left out.

Not every item is exactly on point.  For example, in today’s alert, there was a real estate listing for a house in “2445 E Discovery Place” in Langley, WA.  But, then again, you sometimes get amusing articles such as “10 Ways to tell a lawyer knows nothing about eDiscovery” from Searcy Law.com.  Every now and then, you need a good laugh.

So, what do you think? How do you keep up to date on your 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Why Did I Get Two Emails This Morning? – eDiscovery Subscriptions

If you are an email subscriber to the blog (thanks for subscribing, by the way!), you may have noticed an anomaly in your Inbox this morning – two eDiscovery Daily emails.  So, why did this happen?  Here’s why.

Yesterday, we changed subscription feed providers, from our old provider (Feedburner) to our new provider (FeedBlitz).  We did so, because the FeedBlitz service gives us greater flexibility to customize the email to make it more useful to you.  The new subscription feed emails will include the title of the day’s post in the Subject line and will also provide links to recent stories, giving you another chance to catch them if you missed them.  We hope that you’ll find this new format to be much more informative and user-friendly.

Unfortunately, while migrating the feed over to the new service, I missed an important step in the process – turning off the old feed.  Oops.  So, those of you who subscribe via email received two emails today.

I believe that I have corrected the problem and you should only receive one email each day we have a new post going forward.  Sorry for the inconvenience and any “digital debris” that may have resulted in redundant emails.  😉

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

How Do You Dispose of “Digital Debris”? EDRM Has Answers – eDiscovery Best Practices

In 2012, the Compliance, Governance and Oversight Council (CGOC) released survey results indicating that nearly 70 percent of organizational information has no legal or business value and noted that, for most organizations, information volume doubles every 18-24 months.  Now, EDRM, in collaboration with the CGOC, has released a new white paper to address growing concerns related to the amount and substance of electronic data currently created and stored.

Announced last week, the white paper, titled Disposing of Digital Debris – Information Governance Strategy and Practice in Action, is designed to provide readers with the strategy and practice they need to achieve disposal of their unnecessary electronic information.  Why is this issue such a major problem in organizations today?  Consider the following:

  • Every day, we create 2.5 quintillion bytes of data and rising;
  • Storage locations can include on-site, off-site, cloud and Software as a Service (SaaS) deployments and appear in a variety of hybrid configurations;
  • Social media platforms such as Twitter, Instagram or Facebook combine large volumes of data with high intensity social habits, creating large volumes of potentially sensitive data;
  • IT infrastructure, burdened by the storage and management of excessive data, shoulders high hidden costs that impact its budget and degrade application performance and operations;
  • eDiscovery processes result in the preservation of large amounts of data, including many duplicates that will be re-used as evidence in future litigation if not properly destroyed;
  • New regulatory requirements such as Dodd-Frank and privacy regulations increase the cost and risk of unnecessarily managing data debris.

With these factors contributing to the problem and nearly 70 percent of organizational data having no legal or business value, the need to identify and dispose of digital debris is clear.  To address the issue, the white paper is organized into three sections:

  1. The Problem – Defining and Identifying Digital Debris: This section discusses the tendency of IT departments to “keep everything forever”, provides several examples of digital debris and discusses the advantages of – and roadblocks to – disposal.
  2. The Strategy – Utilizing the Information Governance Reference Model (IGRM) Framework to Define and Design a Successful Information Governance Program: This section reviews the IGRM model (previously covered on this blog here) and covers a three-step approach to effectively begin to reduce both the risk and overhead costs associated with risky retention of digital debris.
  3. The Practice – Implementing the Strategy with Success: This section discusses and provides graphics to illustrate best practices for integrating people, process and technology and the benefit of a holistic approach involving all stakeholders, including Records management, Legal, Line of business users, Privacy and security and IT.

The white paper is available here and can be viewed online or downloaded as a PDF file.

So, what do you think? Does your organization have an effective program in place to eliminate “digital debris”? 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Predictive Analytics: It’s Not Just for Review Anymore – eDiscovery Trends

One of the most frequently discussed trends in this year’s annual thought leader interviews that we conducted was the application of analytics (including predictive analytics) to Information Governance.  A recent report published in the Richmond Journal of Law & Technology addresses how analytics can be used to optimize Information Governance.

Written by Bennett B. Borden & Jason R. Baron (who was one of our thought leaders discussing that very topic), Finding the Signal in the Noise: Information Governance, Analytics, and the Future of Legal Practice, 20 RICH. J.L. & TECH. 7 (2014) is written for those who are not necessarily experts in the field.  It provides a synopsis of why and how predictive coding first emerged in eDiscovery and defines important terms related to the topic, then discusses aspects of an information governance program where application of predictive coding and related analytical techniques is most useful. Most notably, the authors provide a few “early” examples of the use of advanced analytics, like predictive coding, for non-litigation contexts to illustrate the possibilities for applying the technology.  Here is a high-level breakdown of the report:

Introduction (pages 1-3): Provides a high-level introduction of the topics to be discussed.

A. The Path to Da Silva Moore (pages 3-14): Provides important background to the evolution of managing electronically stored information (ESI) and predictive coding (fittingly, it begins with the words “In the beginning”).  Starting on page 9, the authors discuss “The Da Silva Moore Precedent”, providing a detailed account of the Da Silva Moore case (our post here summarizes our coverage of the case) and also references other cases, as well: In re Actos (Pioglitazone) Products Liability Litigation, Global Aerospace Inc., et al, v. Landow Aviation, L.P., Kleen Products v. Packaging Corp. of America, EORHB, Inc. v. HOA Holdings and In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation.  Clearly, the past couple of years have provided several precedents for the use of predictive coding in litigation.

B. Information Governance and Analytics in the Era of Big Data (pages 15-20): This section provides definitions and important context for terms such as “big data”, “analytics” and “Information Governance”.  It’s important to have the background on these concepts before launching into how analytics can be applied to optimize Information Governance.

C. Applying the Lessons of E-Discovery In Using Analytics for Optimal Information Governance: Some Examples (pages 21-31): With the background of sections A and B under your belt, the heart of the report then gets into the actual application of analytics in different scenarios, using “True Life Examples” that are “’ripped from’ the pages of the author’s legal experience, without embellishment”.  These examples where analytics are used include:

  • A corporate client is being sued by a former employee in a whistleblower qui tam action;
  • A highly regulated manufacturing client decided to outsource the function of safety testing some of its products and a director of the department whose function was being outsourced, despite being offered a generous severance package, demanded four times the severance amount and threatened to go to the company’s regulator with a list of ten supposed major violations that he described in the email if he did not receive what he was asking for.
  • A major company received a whistleblower letter from a reputable third party alleging that several senior personnel were involved with an elaborate kickback scheme that also involved FCPA violations.
  • An acquisition agreement between parties contained a provision such that if the disclosures made by the target were found to be off by a certain margin within thirty days of the acquisition, the purchase price would be adjusted.

In each case, the use of analytics either resulted in a quick settlement, proved the alleged violations to be unfounded, or resulted in an appropriate adjustment in the purchase price of the acquired company.  These real world examples truly illustrate how analytics can be applied beyond the document review stage of eDiscovery.

Conclusion (pages 31-32): While noting that the authors’ intent was to “merely scratch the surface” of the topic, they offer some predictions for the end of the decade and note “expected demand on the part of corporate clients for lawyers to be familiar with state of the art practices in the information governance space”.  In other words, your clients are going to expect you to understand this.

The report is an easy read, even for novices to the technology, and is a must-read for anyone looking to understand more about applying analytics to Information Governance.  Bennett and Jason are both with Drinker Biddle & Reath LLP and are also co-chairs of the Information Governance Initiative (here is our recent blog post about IGI).

So, what do you think? Has your organization applied analytics to big data to reduce or eliminate litigation costs? 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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 Finds Rule for Arranging and Labeling Documents Does Not Apply to ESI – eDiscovery Case Law
In Anderson Living Trust v. WPX Energy Prod., No. CIV 12-0040 JB/LFG (D.N.M. Mar. 6, 2014), New Mexico District Judge James O. Browning granted the defendants’ Motion to Reconsider an earlier discovery ruling that would have required the defendants to arrange and label the discovery documents they had already produced, on the grounds that under Rule 34, this production was not considered electronically stored information.

At issue in this hearing was whether “a party must, under Rule 34(b)(2)(E)(i) of the Federal Rules of Civil Procedure, arrange and label electronically stored information (‘ESI’) to correspond to the categories in the request, or whether compliance with rule 34(b)(2)(E)(ii)—production of ESI in the form that the requesting party requests, or in another reasonably usable form—is sufficient.” This question was applied to the production of approximately 20,000 pages of hard copy documents, which the defendants had scanned and produced in the format requested by the plaintiffs.

Previously in the course of discovery for this case, both parties had reached an agreement concerning discovery for the defendants to convert particular hard copy documents “in the order they were maintained within each file” to “fully searchable PDF files.” However, once production was completed according to the plaintiffs’ specifications, the plaintiffs filed a motion to compel the defendants to arrange and label the scanned document in order to “designate which of the Plaintiffs’ numbered requests these documents are responsive to.” The plaintiffs maintained that they could not manage the “tens of thousands of pages of documents” produced by the defendants “[w]ithout knowing which documents correspond with specific requests and whether the Defendants have, in fact, produced any documents responsive to some requests…”.

The defendants voluntarily provided the plaintiffs with an index of their production in response to the motion to compel, and argued that requiring them to “parse through the verbiage of each request and narrow down precisely which file was produced in response to which request would take a significant amount of time” and would therefore be unduly burdensome.

Initially, Judge Browning was inclined to side with the plaintiffs, but after hearing the defendants’ Motion to Reconsider, it was concluded that under Rule 34, scanned hard copy documents would not be considered ESI, and therefore the requirement that “documents be produced either in the usual course of business or labeled to correspond to categories in the request” does not apply. Therefore, the defendants had met their discovery obligations.

Judge Browning stated in part: “From the evidence available to the Court, it appears that the Plaintiffs did more than merely ‘stipulate’ to the form of production – it appears the Defendants were the one making most of the concessions: they agreed to the Plaintiffs’ request to scan hard copy documents into ESI for the Plaintiffs’ convenience, and they assented to the Plaintiffs’ request to convert the information into PDF form, rather than the cheaper and more familiar [from the Defendants’ perspective] TIFF form.”

Therefore, the defendants’ Motion to Reconsider was granted, with the conclusion that the “defendants’ production of discovery in PDF format – consisting of items stored as ESI before the litigation, as well as approximately 20,000 pages of documents that existed in hard copy form before being rendered into ESI for production – is adequate, and no further production or labeling is required.”

So, what do you think? Should electronically stored information be defined solely as documents that already existed in electronic format prior to litigation? Should it be reasonably logical to assume that documents produced as discovery be arranged and labeled to correspond with responsive requests? 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Peruse, But Don’t Friend Potential Jurors on Social Media – eDiscovery Trends
Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.  So says a new formal opinion from the American Bar Association (ABA) Standing Committee on Ethics and Professionalism.

Formal Opinion 466 is a nine page PDF document which is designed to cover the responsibilities for lawyers who are reviewing jurors’ Internet presence.  For the purposes of this opinion, Internet-based social media sites that readily allow account-owner restrictions on access are referred to as “electronic social media” or “ESM” sites – of which the opinion gives current examples like Facebook, MySpace, LinkedIn, and Twitter.

Under Model Rule 3.5(b) of the ABA Model Rules of Professional Conduct, a lawyer may not communicate with a potential juror leading up to trial or any juror during trial unless authorized by law or court order.  With that in mind, the opinion addresses three levels of lawyer review of juror Internet presence:

1. passive lawyer review of a juror’s website or ESM that is available without making an access request where the juror is unaware that a website or ESM has been reviewed;

2. active lawyer review where the lawyer requests access to the juror’s ESM; and

3. passive lawyer review where the juror becomes aware through a website or ESM feature of the identity of the viewer.

To illustrate whether each activity violates Rule 3.5 (b), the opinion analogizes each of the activities to real world contact, as follows:

1. In the world outside of the Internet, a lawyer or another, acting on the lawyer’s behalf, would not be engaging in an improper ex parte contact with a prospective juror by driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer’s jury-selection decisions.  So, passive review of a juror’s website or ESM, that is available without making an access request, and of which the juror is unaware, does not violate Rule 3.5(b).

2. This would be akin to driving down the juror’s street, stopping the car, getting out, and asking the juror for permission to look inside the juror’s house because the lawyer cannot see enough when just driving past and it would be the type of ex parte communication prohibited by Model Rule 3.5(b).

3. This is akin to a neighbor’s recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.  A lawyer who uses a shared ESM platform to passively view juror ESM under these circumstances does not communicate with the juror. The lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the ESM.

Also, under Model Rule 3.3(b), if a lawyer discovers criminal or fraudulent conduct by a juror related to the proceeding, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.  However, the opinion hedged on a lawyer’s duty to notify the court when the conduct is merely “improper”, but stops short of being criminal or fraudulent.

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

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Rule 37(e) Amended Again – eDiscovery Trends

Last month, we discussed significant changes made to Rule 37(e), which had been hotly debated (as reflected in our recent thought leader series) and was the source of many of the 2,354 public comments filed regarding the recent proposed rules changes.  Earlier this month (on April 10th and 11th), the Advisory Committee on Civil Rules met to review proposed amendments to the Rules of Civil Procedure, including recommended changes to those proposed amendments as published for public comment and further changes were made to Rule 37(e).

Discussion regarding Rule 37(e) occurred on the second day of the two-day meeting and a final version of the proposed amended rule was presented for the consideration of the full Advisory Committee (also known as the “Duke Subcommittee”), which was ultimately approved by that committee without opposition and will now be submitted to the Standing Committee for its review and potential approval.  Here is the new, much simpler, proposed rule:

(e)  FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION.  If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve the information, and the information cannot be restored or replaced through additional discovery, the court may:

(1)  Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice;

(2)  Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation:

(A)  presume that the lost information was unfavorable to the party;

(B)  instruct the jury that it may or must presume the information was unfavorable to the party; or

(C)  dismiss the action or enter a default judgment.

During the meetings, the Advisory Committee also unanimously approved proposed amendments to Rules 1, 4, 16, 26, and 34.  The proposed amendments will be considered at the next meeting of the Standing Committee on May 29-30.

The full report of the meetings including the text of the proposed amendments to rules 1, 4, 16, 26, and 34 are available in the Advisory Committee’s 580 page(!) Agenda Book here.  Discussion of Rule 37(e) starts on page 369 – you can click on Tab 3 in the Agenda to jump straight to that section.

Click here, here, here and here for previous posts on this blog regarding the proposed rules changes.

So, what do you think? Are the latest changes an improvement?  Will there be more changes? 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.