Close
Enter your
text here

Electronic Discovery

Searching for Individuals Isn’t as Straightforward as You Think – eDiscovery Best Practices

I’ve recently worked with a couple of clients who proposed search terms for key individuals that were a bit limited, so I thought this was an appropriate topic to revisit.

When looking for documents in your collection that mention key individuals, conducting a name search for those individuals isn’t always as straightforward as you might think.  There are potentially a number of different ways names could be represented and if you don’t account for each one of them, you might fail to retrieve key responsive documents – OR retrieve way too many non-responsive documents.  Here are some considerations for conducting name searches.

The Ever-Limited Phrase Search vs. Proximity Searching

Routinely, when clients give me their preliminary search term lists to review, they will always include names of individuals that they want to search for, like this:

  • “Jim Smith”
  • “Doug Austin”

Phrase searches are the most limited alternative for searching because the search must exactly match the phrase.  For example, a phrase search of “Jim Smith” won’t retrieve “Smith, Jim” if his name appears that way in the documents.

That’s why I prefer to use a proximity search for individual names, it catches several variations and expands the recall of the search.  Proximity searching is simply looking for two or more words that appear close to each other in the document.  A proximity search for “Jim within 3 words of Smith” will retrieve “Jim Smith”, “Smith, Jim”, and even “Jim T. Smith”.  Proximity searching is also a more precise option in most cases than “AND” searches – Doug AND Austin will retrieve any document where someone named Doug is in (or traveling to) Austin whereas “Doug within 3 words of Austin” will ensure those words are near each other, making is much more likely they’re responsive to the name search.

Accounting for Name Variations

Proximity searches won’t always account for all variations in a person’s name.  What are other variations of the name “Jim”?  How about “James” or “Jimmy”?  Or even “Jimbo”?  I have a friend named “James” who is also called “Jim” by some of his other friends and “Jimmy” by a few of his other friends.  Also, some documents may refer to him by his initials – i.e., “J.T. Smith”.  All are potential variations to search for in your collection.

Common name derivations like those above can be deduced in many cases, but you may not always know the middle name or initial.  If so, it may take performing a search of just the last name and sampling several documents until you are able to determine that middle initial for searching (this may also enable you to identify nicknames like “JayDog”, which could be important given the frequently informal tone of emails, even business emails).

Applying the proximity and name variation concepts into our search, we might perform something like this to get our “Jim Smith” documents:

(jim OR jimmy OR james OR “j.t.”) w/3 Smith, where “w/3” is “within 3 words of”.  This is the syntax you would use to perform the search in OnDemand®, CloudNine Discovery’s online review tool.

That’s a bit more inclusive than the “Jim Smith” phrase search the client originally gave me.

BTW, why did I use “jim OR jimmy” instead of the wildcard “jim*”?  Because wildcard searches could yield additional terms I might not want (e.g., Joe Smith jimmied the lock).  Don’t get wild with wildcards!  Using the specific variations you want (e.g., “jim OR jimmy”) is often best, though you should always test your terms (and variations of those terms) to maximize the balance between recall and precision.

Of course, there’s another way to retrieve documents that mention key individuals – through their email addresses.  We’ll touch on that topic next week.

So, what do you think?  How do you handle searching for key individuals within your document collections?  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.

Cloud Security Fears Diminish With Experience – eDiscovery Trends

One of the more common trends identified by thought leaders in our recently concluded thought leader series was the continued emergence of the cloud as a viable solution to manage corporate big data.  One reason for that appears to be greater acceptance of cloud security.  Now, there’s a survey that seems to confirm that trend.

According to a recent survey of 1,068 companies conducted by RightScale, Inc. (referenced in the Forbes article Cloud Security Fears Diminish With Experience, Survey Shows, by Joe McKendrick), concern about cloud security diminish as users gain more experience using cloud-based services.  According to the survey, “security remains the most-often cited challenge among Cloud Beginners (31 percent) but decreases to the fifth most cited (13 percent) among Cloud Focused organizations. As organizations become more experienced in cloud security options and best practices, the less of a concern cloud security becomes”.

Other key findings of the survey include:

  • 94 percent of respondent organizations are using the cloud in some form, with 29 percent using the public cloud only, 7 percent using private clouds only and 58 percent using both public and private clouds;
  • 74 percent of enterprises have a hybrid cloud strategy and more than half of those are already using both public and private cloud;
  • Less than a third of organizations have defined such critical aspects of governance as which clouds can be used, disaster recovery approaches, and cost management;
  • The number of respondents who regard cloud security as a significant challenge has decreased among both cloud beginners and cloud pros;
  • The cloud “maturity” of respondents ranged from 24 percent who either have no plans to deploy cloud solutions (6 percent) or are only in the planning stage (18 percent) to 47 percent that either have multiple projects or applications already deployed in the cloud (25 percent) or are heavily using cloud infrastructure and are looking to optimize cloud operations as well as cloud costs (22 percent).

You can download the 20 page survey report, chock full of graphs and statistics, here.  It’s a very interesting read.

So, what do you think? How many cloud-based applications does your organization use? 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.

Definition of “Electronic Storage” Considered in Invasion of Privacy Lawsuit – eDiscovery Case Law
 

In Cheng v. Romo, No. 11-10007-DJC (D. Mass. Dec. 20, 2013), the interpretation of laws enacted prior to the modern Internet age served as a deciding factor in the outcome of this invasion of privacy lawsuit, which alleged a violation of the Stored Communications Act (SCA).

The plaintiff in this case had sued the defendant for violating the SCA by accessing his web-based emails without his authorization or consent. Here, the question was not whether the emails were read, as the defendant admitted to accessing the plaintiff’s emails. However, the defendant argued that because the plaintiff had previously opened the emails, they did not meet the definition of being in “electronic storage” as described by the SCA.

The question of whether these emails met the qualifications for “electronic storage” under the SCA was therefore addressed accordingly.

The definition of electronic storage as set forth under the SCA is “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication[.]” The plaintiff argued that the emails at issue were covered by at least the second prong, (B), of the definition under the SCA.

In considering this case, Massachusetts District Judge Denise J. Casper recognized that a clear precedent had not been established by previous cases that dealt with similar issues. Several courts have addressed the question of web-based emails as “electronic storage” with consideration of the SCA, with mixed results. Two competing findings in particular were referred to, e.g., Theofel v. Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2003), which found that web-based emails were in electronic storage under this statute; and United States v. Weaver, 636 F. Supp. 2d 769, 770-73 (C.D. III. 2009), which found that “[p]reviously opened emails stored by Microsoft for Hotmail [email system] users are not in electronic storage” in the context of a criminal subpoena.

The decision was further influenced by the fact that the SCA was enacted in 1986, and that the statute employed “vague language” in which the definition for electronic storage has not changed since the laws were enacted. For context, it was noted that in 1986, “the process of network communication was still in its infancy; the World Wide Web, and the Internet as we know it, did not arrive until 1990.”

At contention as well was the term “backup storage” in the SCA, which the defendant contended did not apply to the plaintiff’s emails, as he had not made copies of the emails to store elsewhere, and therefore the web-based emails were the only copies existent and were not backups. However, because the statute was written at a time before the modern email system, Judge Casper reasoned that since the defendant “used her web browser to access [plaintiff’s] emails, the text of those emails were transmitted to her own Internet browser, which is how she was able to see, and later print, [plaintiff’s] emails.” Therefore, it was reasonably inferenced that regardless of the number of times the emails were viewed through downloads of web page representations into web browsers, the web-based service “continued to store copies of those same emails” and were held in “storage of such communication by an electronic communication service for purposes of backup protection of such communication” – meeting the “electronic storage” definition of the SCA.

In this jury trial, a verdict was returned in favor of the plaintiff. The defendant’s movement to judge as a matter of law was denied, and the case closed.

So, what do you think? Should the court have significant leeway for interpretation of statutes referring to electronic information that date back to pre-Internet periods? Should web-based emails automatically be considered a form of backup storage, in light of the way these services are used today? 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.

Sanctions Denied over Destruction of Audio Evidence in Discrimination Lawsuit – eDiscovery Case Law
 

In Sokn v. Fieldcrest Cmty. Unit School Dist. No. 8, No. 10-cv-1122 (C.D. Ill. Jan. 17, 2014), the plaintiff filed a motion for default and sanctions relating to spoliation of evidence with a federal court, after a district court issued a Report and Recommendation (R&R) to deny the motion. Illinois Senior District Judge Joe Billy McDade ultimately declined to impose sanctions, due to a lack of evidence regarding the timing of alleged spoliation, and the plaintiff’s inability to establish bad faith on the part of the defendants.

The plaintiff’s motion argued that the defendants had destroyed audio recordings of closed-session school board meetings that were relevant to the issues of this discrimination case, and that in doing so the defendants had violated Illinois common law, the Illinois Open Meetings Act (OMA), and the defendants’ own documentation retention policies. As such, the plaintiff requested spoliation sanctions.

It was acknowledged that relevant discussions appeared to have taken place at an unknown number of school board meetings “[b]etween May 1, 2007 and January 1, 2009). The policy of the school district states that audio recordings of such meetings are to be maintained for at least 18 months, and only a vote by the school board could cause them to be destroyed. It appears the policy was “designed to fulfill the requirements of the Illinois Open Meetings Act…”

However, the plaintiff argued that an “unknown number of recordings” had been destroyed without a vote, and further that the destruction had occurred at a point when litigation was “either on file [or] reasonably foreseeable, or when a reasonable person would have foreseen that the audio recordings were material to a potential civil suit.” Reasonable anticipation should have occurred on March 24, 2010, at which point the plaintiff had notified the defendants that she believed she had been discriminated against due to her gender. Additionally, the plaintiff stated she believed the relevant audio recordings may have been destroyed less than 18 months after they were created, which would again be in violation of the defendants’ own policies.

Judge McDade’s review of the issues focused first on the alleged violation of the defendants’ retention policies and the OMA, and considered whether these violations were sufficient cause to impose sanctions. With regard to the OMA and the pursuant duty to preserve, it was stated that the “existence of a general duty to preserve is not the proper prerequisite for assessing sanctions in federal court…” and that the general duty imposed by the OMA is to “preserve audio recordings of closed session meetings, not a specific duty to preserve evidence for litigation, and certainly not for this specific litigation.”

Further, Judge McDade reasoned that “bad faith is a prerequisite to imposing sanctions for the destruction of evidence.” Bad faith might have been inferred, had the destruction of the audio recordings occurred before the defendants had reasonable indication of the possibility of litigation. However, the plaintiff was unable to establish the exact time period when the tapes had been destroyed, and therefore “[i]n such a case, the Court will not infer bad faith.”

Without evidence of the timing of the destruction, which was deemed a key factor in the defendants’ “duty to preserve that arises in direct relation to the pendency of potential litigation,” Judge McDade found that sanctions were “not appropriate under these circumstances.” The matter was then referred back to the district court to resume pre-trial proceedings.

So, what do you think? Should the burden to prove timing for the destruction of evidence in order to demonstrate bad faith rest with the plaintiff? Are sanctions warranted in cases where bad faith might be inferred, save for one factor that cannot be demonstrated? 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.

Government Attorneys Have eDiscovery Issues Too – eDiscovery Trends
 

When many eDiscovery professionals talk about their clients, they’re usually talking about law firms and corporations.  However, government agencies have their own eDiscovery challenges.  According to findings from Deloitte’s 7th Annual Benchmarking Study of e-Discovery Practices for Government Agencies, attorneys and other professionals in government agencies have their own problems and concerns when it comes to eDiscovery.

One hundred twenty three (123) professionals from various government agencies participated in the survey, with attorneys comprising 80% of the respondents.  Depending on the area, the respondents showed different levels of confidence in their preparedness regarding discovery and handling of discovery matters:

  • When it comes to challenges with regard to handling, processing, reviewing, or producing ESI, the respondents ranked the most significant challenges as follows: 1) Internal systems and processes, 2) Buy-In from senior management, 3) Communicating with IT, 4) Budgetary issues/constraints;
  • When asked if they felt adequately prepared to discuss matters regarding eDiscovery with opposing counsel, 53% of the respondents said ‘Yes’;
  • However, when asked if they feel that you have adequate technical support when dealing with opposing counsel regarding electronic discovery, only 25% of the respondents said ‘Yes’;
  • 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;
  • Predictive coding may be the wave of the future, but only 17% of survey respondents indicated that they had used it in any of their cases;
  • When asked what issues are driving upper management to explore more advanced electronic discovery solutions, the most commonly identified issue was ‘respond to increasing amounts of data’ (20% of respondents).  However, 19% of respondents indicated that their upper management is not actively looking for an eDiscovery solution;
  • Top three challenges in identifying ESI identified by respondents were: 1) Volume of data, 2) obsolete or proprietary data and 3) insufficient manpower.

You can download Deloitte’s 4 page report here.  If you’re not in a mood to read and you like your findings condensed USA Today infographic style, you can open up their one page infographic here.

So, what do you think? Do you work for, or with, government agencies?  If so, do any of these findings 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.

Smaller Law Firms Save Big with Cloud-Based eDiscovery – eDiscovery Trends

According to a new article in ABA Journal (Cloud-based e-discovery can mean big savings for smaller firms, written by Joe Dysart), if you are a smaller law firm, it may make more sense to “rent” your eDiscovery applications in the “cloud” rather than bring a full-fledged hardware and software solution in-house.

Dysart’s article quotes a couple of panelists from a panel session at the recent LegalTech (LTNY) conference, including panelist Alan Winchester, a partner at the New York City firm Harris Beach, who stated: “For firms without robust IT departments, it grants them the experts to manage the technology operations and security.”

The article also identifies some benefits of using cloud-based eDiscovery solutions, including:

  • No need for software updating: Updates to cloud software tend to evolve over time, with users easily absorbing smaller, steadier changes over a much longer time span.
  • Best practices are continually updated: eDiscovery cloud vendors learn to avoid the pitfalls with software much more quickly, given that they are working with multiple law firms at once. Essentially, the mistakes and misunderstandings that can happen with an eDiscovery software package tend to happen at a much faster rate.
  • No need for yearlong rollouts: With eDiscovery in the cloud, all the hardware and software installation logistics are sidestepped. Instead, firms can focus entirely on training staff and bringing them up to speed.
  • The return on investment can be very attractive: Smaller law firms may go months or even years before needing a robust eDiscovery package. Instead of spending major dollars – and then watching helplessly as the system grows obsolete – they can go to the cloud for eDiscovery on an ad hoc basis and often save handsomely.

As platform manager for CloudNine Discovery’s OnDemand® eDiscovery review application (shameless plug warning!), I can attest to the benefits above with some of our own clients.  When we have software updates to apply, it’s a simple rollout (typically on a Saturday night for up to a couple of hours – our developers have no life!) for all users of the software.  And, assisting various clients has enabled us to learn how the software can be modified to meet their needs (the priorities in our ever-changing development roadmap are largely influenced by our own clients’ requests).

If you’re a small firm shopping to “rent” an eDiscovery application, consider this:

  • Know where your data is stored: It’s your data, so you should be able to know where it’s stored and know that it’s secure.  Is it stored in the US or internationally?  You don’t want to have issues getting to your data when you need it most.
  • Try it before you buy it: The cloud provider should let you conduct a no risk trial with your own data before you have to make a purchasing decision (see the banner below if you want to check out CloudNine’s no-risk trial offer).
  • Training and support should be free: The application should be easy to use, but it still helps to get training as well as application support when questions arise.  However, you shouldn’t have to pay for it.

As Dysart’s article concludes, “law firms do need to take a hard look at the technology both ways before taking the plunge”, so it’s always important to consider the pros and cons as it applies to your firm.  Nonetheless, the benefits of cloud-based eDiscovery solutions make it an attractive option for many law firms today, especially small firms with limited budget and resources to manage the ESI in their cases effectively.

So, what do you think? Have you considered cloud-based solutions for your eDiscovery projects? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Ruling on ESI Discovery Dispute Delayed as Court Requests Specific Information – eDiscovery Case Law
 

In Worley v. Avanquest North America Inc., No. C 12-04391 WHO (LB), 2013 U.S. Dist. (N.D. Cal. Dec. 13, 2013), a putative class action involving PC security software, California Magistrate Judge Laurel Beeler required the defendant to produce further information related to discovery disputes before a ruling would be issued.

Various discovery disputes arose in this case after the parties failed to agree on a discovery period. The applicable statute of limitations for this lawsuit was five years, and the defendant offered to preserve as evidence Electronically Stored Information (ESI) created during that five-year period. However, the plaintiffs requested an additional ten years added to the discovery period, as this would preserve “all relevant and discoverable information from the time the original versions of the software were developed to the present.”

According to the legal standard set by Rule 26, subsection (b)(1), parties may “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense…” and relevant information “need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Therefore, Judge Beeler sided with the plaintiffs regarding an extended discovery period, stating that relevant information “such as documents relating to the software’s design and purpose, could have pre-dated the statutory period.”

However, the defendant stated that adding ten years to the discovery period would result in an unduly burdensome obligation for preservation, and would be disproportionate to the litigation. This is also addressed in subsection (b)(2)(C) under Rule 26, which states that “the court must limit the frequency or extent of discovery otherwise allowed by these rules…” if it is determined that the discovery would be “unreasonably cumulative or duplicative,” or that “the burden or expense of the proposed discovery outweighs its likely benefit” to the case.

Judge Beeler noted that the argument could not be addressed without further information, specifically that the parties had identified neither potential custodians, nor the amount of information the defendant actually had in its possession, since the defendant’s company acquired the software at issue in 2005. These details would be required in order for the defendant’s technical expert “to specify the burdens associated with preserving relevant information (particularly of electronically-stored information).”

Therefore, the defendant was ordered to identify custodians who would be likely to hold relevant information with regard to the plaintiff’s discovery requests, and further to “consult a person with expertise (such as an IT employee) and specify any undue burden associated with preservation, and produce non-burdensome, relevant information” before a ruling would be given. If the technical expert identified any issues that would make production of documents unduly burdensome, both parties were to “comply with the court’s discovery procedures and submit a joint discovery letter that provides details about the problems and puts their dispute in context.” Meanwhile, Judge Beeler ordered the defendant to produce the agreed documents covered by the five-year statute of limitations, noting that further “discovery can be iterative.”

The final discovery dispute concerned the defendant’s request for the plaintiffs to produce mirror image copies of hard drives belonging to the plaintiffs and their experts, in order to test the software at issue. The plaintiffs argued against this, as the hard drives contained both personal and privileged information, including financial data, family photos, and private communications. They instead proposed allowing the defendant to choose a forensic expert, who would image the hard drives and provide the defendant with specifically requested data, including “recreate[d] computing environments.”

Judge Beeler deemed the proposal “not workable,” and permitted the imaging of the drives with the allowance that the plaintiffs could use a protective order to protect any private information, and would be able to review and remove any privileged information prior to remanding the images to the defendant.

So, what do you think? Should discovery periods be limited to the statute of limitations applicable to a given case? Are protective orders sufficient to protect private information when personal-use computers are involved in litigation? 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.

After 2,354 Public Comments, One Major Change to the Proposed Federal Rules – eDiscovery Trends

During our recently concluded thought leader interview series, we asked each of the interviewees their thoughts about the proposed eDiscovery rules amendments to the Federal Rules of Civil Procedure (FRCP) that were published last August for public comment.  And, of course, they had plenty to say.  The majority of their comments related to the proposed amendment to Rule 37(e) which was intended to create a uniform national standard regarding the level of culpability required to justify severe sanctions for spoliation.  Now, it looks like the numerous public comments that were filed have resulted in a change to the rule.

By the February 15 deadline for the comment period, no less than 2,354 public comments had been filed.  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.

Two subcommittees made significant changes to the rule, dropping the conditions for sanctions, which would appear to restore authority to the judiciary to decide the appropriateness of sanctions.  Here is the revised proposed rule in full:

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. Absent  exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. If a party failed to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, the court may:

(1) Order measures no greater than necessary to cure the loss of information, including permitting additional discovery; requiring the party to produce information that would otherwise not be reasonably accessible; and ordering the party to pay the reasonable expenses caused by the loss, including attorney’s fees.

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

(3) 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.

(4) In applying Rule 37(e), the court should consider all relevant factors, including:

(A) the extent to which the party was on notice that litigation was likely and that the information would be relevant;

(B) the reasonableness of the party’s efforts to preserve the information;

(C) the proportionality of the preservation efforts to any anticipated or ongoing litigation; and

(D) whether, after commencement of the action, the party timely sought the court’s guidance on any unresolved disputes about preserving discoverable information.

So, what do you think? Are the changes an improvement?  Did the subcommittees go far enough? 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.

eDiscovery Daily Is Forty Two!

Months old, that is.  Hey, that’s 24 1/2 in dog years!

It slipped up on us!  Forty two months ago last week, eDiscovery Daily was launched.  It’s hard to believe that it has been 3 1/2 years since our first three posts that debuted on our first day.  887 posts later, a lot has happened in the industry that we’ve covered.  You may be right, we may be crazy for committing to a daily post each business day, but we still haven’t missed a business day yet.  Twice a year, we like to take a look back at some of the important stories and topics during that time.  So, here are just a few of the posts over the last six months you may have missed.  Enjoy!

Thanks for your support!  We’ve grown readership over 350% since the first six month period and almost octupled (that’s grown 8 times in size!) our subscriber base since those first six months!  We’re soon approaching 300,000 visits to our blog and, later this year, will publish our 1,000th post!

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

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

Clawback Rights Upheld and Plaintiff Sanctioned for Refusal to Comply Concerning Inadvertently Produced Privileged Documents – eDiscovery Case Law
 

In RIPL Corp. v. Google Inc., No. 2:12-cv-02050-RSM, 2013 U.S. Dist. (W.D. Wash. Dec. 17, 2013), seven discovery-related motions were heard concerning this trademark infringement action. The various motions to seal, compel, enforce, and sanction were filed after the parties had entered into a stipulated protective order. Washington District Judge Ricardo S. Martinez granted in part, denied in part, and deferred in part the various motions.

The protective order in force included a clawback provision, which required inadvertently produced attorney-client privileged documents to be returned or destroyed, with certification for the deletion or destruction of the documents, provided the party invoking the provision took the steps of “promptly notifying the recipient(s) and expressly articulating the basis for the asserted privilege or immunity.”

In the filing, the defendant stated that privileged documents had been inadvertently produced to the plaintiff on July 2, 2013. However, counsel for the defendant did not realize the documents had been disclosed until August 12, 2013, while preparing for the defendant’s deposition. The defendant conducted a search the next day for other privileged documents that may have been disclosed, and communicated via email with the plaintiff to exercise the clawback provision. The plaintiff at this point refused to return or destroy the documents at issue.

When the defendant filed a motion to enforce the protective order and clawback provision, it also requested that the plaintiff be sanctioned for filing documents under seal that quoted the privileged documents at issue, and filed a request to strike, along with other motions.

In arguing the motion to enforce, the plaintiff claimed that the defendant had waived its right to claw back the documents because “prompt” and “inadvertent” had not been defined under the protective order. The plaintiff cited the balancing test of Federal Rule of Evidence 502(b) for waiving attorney-client privilege with regards to “inadvertent” and claimed that the clawback request had not been “prompt.”

Judge Martinez rejected the arguments of the plaintiff concerning the clawback request, stating that there is “no requirement that, in order to supplant Rule 502(b), an agreement provide adequate detail regarding ‘what constitutes inadvertence, what precautionary measures are required, and what the producing party’s post production responsibilities are to escape waiver.’” Simply, it was ruled that “terms like ‘inadvertence’ and ‘prompt’ need not be defined in the protective order” under Rule 502. The plaintiff was ordered to certify the deletion or destruction of all unredacted copies of the privileged documents at issue within ten days.

The defendant’s request for sanctions were denied concerning the plaintiff’s filing documents under seal that contained quotes from attorney-client privileged documents. However, Judge Martinez ordered the plaintiff to pay the defendant’s fees and costs for bringing the motion, as a sanction for refusing to comply with the clawback provision and “hold[ing] the documents hostage for roughly two months in violation of the Protective Order.”

So, what do you think? Should a time limit be imposed as the definition of “prompt” with regard to stipulated protective orders? Should parties be permitted to submit attorney-client privileged information under seal when privileged documents are received inadvertently? 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.