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Electronic Discovery

Bad Faith Violations in Discovery Lead to Sanctions for Defendant – eDiscovery Case Law

Regarding the case In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, MDL No. 2385, 3:12-md-02385-DRH-SCW, 2013 U.S. Dist. (S.D. III. Dec. 9, 2013), the defendants’ repeated failure to preserve and produce documents during discovery was found to be in bad faith. The defendants were ordered to produce the documents, or to explain why they couldn’t be produced, and to pay a hefty fine plus the plaintiff’s costs and fees for pursuing discovery motions. The order left room for additional future sanctions, should the bad faith behavior continue.

In the case before Chief District Judge David R. Herndon, the Plaintiffs’ Steering Committee (PSC) filed a motion to seek sanctions against the defendants due to failure to preserve evidence and a faulty discovery hold. The PSC stated four types of discovery violations outlining the defendants’ failure to: (1) identify and preserve the files of a key custodian, (2) preserve evidence or disclose and produce evidence in a timely manner, (3) preserve or produce text messages from employees in a timely manner, and (4) provide passwords for use in collecting documents, resulting in a delay for identifying and producing data.

Judge Herndon noted in addressing the motions that the defendants “have simply failed to follow the Court’s orders,” stating that the “ongoing discovery abuses” by the defendants have “plagued” the proceedings nearly since the beginning of this litigation. He went on to say that he had “never seen a litigation where the problems are just ongoing and continual, and every month or every week there’s an issue of this failure and that failure and the other failure. It is just astounding.”

Due to the egregious and continued issues brought on by the defendant’s “numerous and substantial” discovery violations, as well as the effect of prejudicing the plaintiffs and the defendants’ “contumacious disregard for [the Court’s] authority,” Judge Herndon followed Rule 37 which grants the Court the inherent authority to award sanctions and fined the defendants nearly $30,000 – an amount that is roughly equal to $20 per case in this multidistrict litigation (MDL). The defendants were also warned that Judge Herndon believes in “progressive discipline,” a clear statement that further sanctions would be imposed if the defendants’ “endless parade of excuses” continues.

Furthermore, the defendants were ordered to audit their records in an attempt to determine whether additional undiscovered material existed. While Judge Herndon expected that some deficiencies would be found, the audit uncovered a “growing number of ‘gaps’ in production” resulting from the defendants taking liberties with the company-wide litigation hold by applying a “too narrow and an incremental approach.”

Judge Herndon remarked to each of the excuses offered by the defendants with regards to various failures to preserve discovery documents and electronically stored information (ESI), stating that the defendants “do not get to pick and choose which evidence they want to produce from which sources” and that their “efforts to suggest that they and they alone decided to implement such a proportionality test to the litigation hold smacks of a post-debacle argument in desperation to salvage a failed strategy regarding production evasion.” Therefore, the defendants’ attempt to claim good faith was dismissed, as sanctions were imposed.

This case was previously covered on this blog here.

So, what do you think? Were these sanctions a strong enough deterrent to discovery violations in other cases? Or should apparent deliberate evasion and ignoring court orders lead to stiffer penalties? 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.

Announcing Fourth Annual LTNY Thought Leader Series! – eDiscovery Trends

Bad weather, travel cancellations and stolen laptops could not keep us from keeping the tradition alive.  It’s time for another thought leader interview series!

In our efforts to continue to bring our readers perspectives from various thought leaders throughout the eDiscovery community, eDiscoveryDaily has published several thought leader interviews over the nearly 3 1/2 years of our existence.  The past two years at LegalTech New York (LTNY), we were able to conduct interviews with several eDiscovery industry thought leaders and announced the schedule for those interviews after the show.  Click here to see the schedule for last year’s interviews and here to see the 2012 interview schedule with links to each interview we conducted in each year.

We had a full slate of interviews that were cancelled because of our travel difficulties to New York.  Thankfully, every interviewee graciously rescheduled with us over the past few days.  We really appreciate it!  We’re pleased to introduce the schedule for the series, which will begin next Monday, February 24.

Here are the interviews that we will be publishing over the next few weeks:

Monday, February 24: Brad Jenkins, President and CEO of CloudNine Discovery.  Brad has over 20 years of experience as an entrepreneur, as well as 14 years leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Thursday, February 27: Tom Gelbmann, Principal Analyst of Gelbmann & Associates and co-founder of the Electronic Discovery Reference Model (EDRM) and Apersee.  Since 1993, Tom has helped law firms and Corporate Law Departments realize the full benefit of their investments in Information Technology.

Friday, February 28: James D. Zinn, Managing Director of Huron Consulting Group.  James is the Laboratory Director for Huron’s National Digital Evidence Laboratory. He manages a team of professionals in the efficient and effective performance of digital evidence and computer forensics examinations. James also helps organizations develop and improve their business processes and technology to provide efficient and cost-effective electronic discovery and computer forensic examinations.

Monday, March 3: Laura Zubulake, Plaintiff in the landmark Zubulake vs. UBS Warburg case.  Laura is also the author of Zubulake’s e-Discovery: The Untold Story of my Quest for Justice, previously discussed on this blog here.

Wednesday, March 5: Alon Israely, Manager, Strategic Partnerships, Business Intelligence Associates (BIA).  Alon has over eighteen years of experience in a variety of advanced computing-related technologies and currently leads the Strategic Partner Program at BIA.

Friday, March 7: Adam Losey, President and Editor-in-Chief, IT-Lex.  Adam is president and editor-in-chief of IT-Lex, a technology law not-for-profit educational and literary organization.  He is also an attorney at Foley & Lardner LLP.  Adam also served as an adjunct professor at Columbia University, where he taught electronic discovery as part of Columbia’s Information and Digital Resource Management Master’s Program.

Monday, March 10: George Socha, President of Socha Consulting LLC and co-founder of the Electronic Discovery Reference Model (EDRM) and Apersee.  As President of Socha Consulting LLC, George offers services as an eDiscovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support.

Wednesday, March 12: Jason R. Baron, Of Counsel, Drinker Biddle & Reath LLP.  Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice.  An internationally recognized speaker and author on the preservation of electronic documents, Jason previously served as Director of Litigation for the U.S. National Archives and Records Administration and as trial lawyer and senior counsel at the Department of Justice.  He also was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.

Friday, March 14: Tom O’Connor, Director of the Gulf Coast Legal Technology Center.  Tom is a nationally known consultant, speaker and writer in the area of computerized litigation support systems.  A frequent lecturer on the subject of legal technology, Tom has been on the faculty of numerous national CLE providers and has taught college level courses on legal technology.

Monday, March 17: Ralph Losey, Partner and National eDiscovery Counsel for Jackson Lewis, LLP.  Ralph is also an Adjunct Professor at the University of Florida College of Law teaching eDiscovery, a prolific author of eDiscovery books and articles, the principle author and publisher of the popular e-Discovery Team® Blog, founder and owner of an intensive online training program, e-Discovery Team Training, with attorney and technical students all over the world and the creator of the Electronic Discovery Best Practices (EDBP.com) model.

Thursday, March 20: Craig Ball, Law Offices of Craig D. Ball, P.C.  A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 750 presentations and papers.  Craig’s articles on forensic technology and electronic discovery frequently appear in the national media, and he writes a monthly column on computer forensics and eDiscovery for Law Technology News called Ball in your Court, as well as blogs on those topics at ballinyourcourt.com.

Thanks to everyone for their time in participating in these interviews and rescheduling them after my travel issues!

So, what do you think?  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.

EDRM Updates Privacy & Security Risk Reduction Model – eDiscovery Best Practices

The Electronic Discovery Reference Model (EDRM) continues to pile up the accomplishments. In addition to announcing a transition to nonprofit status by May 2014, since the May annual meeting, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback and EDRM also published new Collection Standards for collecting electronically stored information (ESI).  Now, EDRM is making updates to earlier accomplishments from just five months ago.

As they announced last week, EDRM announced the reintroduction and refinement of its Privacy & Security Risk Reduction Model (PSRRM). Initially introduced last September by EDRM’s Data Set group (and covered on this blog here), the model provides a process for reducing the volume of private, protected and risky data by using a series of steps applied in sequence as part of the information management, identification, preservation and collection phases of the Electronic Discovery Reference Model.

The PSRRM model is used prior to producing or exporting data containing risky information such as privileged or proprietary information. The middle steps are cyclical and are repeated until the amount of private material is reduced to a desirable amount. The private data is finally quarantined in the final step before the remaining information is produced.

Recent high profile data breaches at Target and Neiman Marcus are prime examples to illustrate that high risk data can cause significant trouble and exposure for organizations today.  As their press release notes, EDRM has revised the PSRRM to include industry feedback and real-world experiences using the model in data remediation and eDiscovery projects to help companies address this exposure in an organized and systematic manner.

The current resource page for the PSRRM model is located here.

So, what do you think?  How do you handle security of your organization’s sensitive data?  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.

Effective Information Governance Takes Initiative – eDiscovery Best Practices

Despite the fact that I missed LegalTech New York (LTNY) last week because of travel difficulties, eDiscoveryDaily is still conducting our fourth annual LTNY thought leader interview series again this year.  I owe a BIG thank you to the thought leaders who were gracious enough to reschedule with me this week and early next week.  We will publish the schedule for posting the interviews early next week.  Stay tuned!

One of the best side-benefits I get from conducting thought leader interviews for the blog is that I get to learn about new programs in the industry that promote best practices.  I learned about one such new program in my thought leader interview with Jason R. Baron, Of Counsel with Drinker Biddle & Reath LLP and former long-time Director of Litigation for the U.S. National Archives and Records Administration (NARA).  Through my interview with Jason, I learned that the Information Governance Initiative (IGI), a cross-disciplinary consortium and think tank focused on advancing information governance, launched last week.

As announced on their expansive launch press release, the IGI will publish research, benchmarking surveys, and guidance for practitioners on its website. The research will be freely available, and the group will also be providing an online community designed to foster discussion and networking among practitioners.

The IGI was founded by Barclay T. Blair, who is the group’s executive director and Bennett B. Borden, who is the organization’s chair, with Jason R. Baron as co-chair. Jay Brudz is general counsel.

As Jason stated on the press release, “I see the IGI’s mission as sounding a call to arms that current information practices are unsustainable in our increasingly big data world, and that IG solutions exist that better leverage new technology and smart practices. Unless corporations and government agencies take more concerted actions, information overload and mismanagement may pose a serious threat to the economy and even to the justice system itself.”

The IGI identifies several leading providers as supporters and is also partnering with several organizations to bring IG stakeholders from different disciplines together to work on the information governance problem, including The CFO Alliance and ARMA International.

Best of all, it’s free to join and receive updates from the IGI and to gain access to their publications when they are available.  Click here to join.

Based on the thought leader interviews that I’ve conducted so far, Information Governance was the most talked about trend at this year’s LTNY.  It will be interesting to see what impact the IGI has on providing best practices and guidance for managing information.

So, what do you think?  Are you interested in the IGI? Will you join?  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.

Search Process for ESI Called into Question, but Court Denies Sanctions for Plaintiff – eDiscovery Case Law
 

In Brown v. West Corp., No. 8:11CV284, 2013 U.S. Dist. (D. Neb. Dec. 4, 2013), the plaintiff filed a motion to compel, claiming the defendant had been insufficient in its handling of searching for Electronically Stored Information (ESI) relevant to discovery. The plaintiff additionally contested a prior order from a magistrate judge, requiring the defendant to explain its search processes to the defendant. Ultimately, Nebraska Senior District Judge Lyle E. Strom denied the requested sanctions and rejected the challenge to the prior order.

The most recent motion saw the plaintiff asking for sanctions under Federal Rule of Civil Procedure 37(b), stating that the defendant failed to comply with the prior order, the purpose of which was stated to “lay bare the defendant’s search process and expose any deficiencies that might be a basis for plaintiff’s motion to compel a more stringent search of potentially relevant ESI for preservation.” In addition, the plaintiff asked that additional discovery be permitted.

However, the defendant had in fact complied with the prior order and explained its search processes regarding ESI, noting that its system did not permit a “‘global search’ of all electronic information in West’s possession.” The substance of the magistrate judge’s concerns regarding the prior order had concerned preservation of ESI, and not necessarily discovery requests. Judge Strom noted that the plaintiff had misinterpreted the prior order, and that the defendants had addressed concerns by “explaining the process by which West employees were directed to identify, preserve, and search potentially relevant materials.” Therefore, “the court finds no reason to require more from the defendant by way of evidence of a proper search.”

In the same motion and combined with the efforts to seek expanded discovery, the plaintiff raised two issues of spoliation. One that the defendant had erased the data of three potential custodians who had left the company, and two, that the defendant had failed to halt the automatic deletion of e-mail which may have been relevant to discovery.

Regarding these issues, Judge Strom once again rejected the contentions, stating that the defendant had repurposed the computers of former employees in apparent good faith, and as a regular business practice, “only after making a determination that all of the relevant information stored on those computers was preserved.” Additionally, the objection to automatic email deletion was dismissed because the plaintiff had not identified relevant emails or email categories that are “not subject to defendant’s preservation process or that have been deliberately destroyed in an attempt to thwart discovery.”

Finally, the plaintiff’s request to overturn the magistrate judge’s order that limited discovery to certain custodians was denied. Regarding Federal Rule 26(b), which states in part that requests for discovery should be limited due to “relevance and the balance between likely benefit and the burden on the producing party,” the magistrate judge had found nothing that would “suggest sufficient benefit [to the plaintiff] to warrant the expansive scope of the requested discovery” as outlined by the plaintiff. Such a scope, the magistrate judge felt, would be “grasping at the periphery by reviewing thousands or tens of thousands of emails,” and further that, “a few pointed questions in a deposition [would be] less burdensome.”

So, what do you think?  Should defendants be permitted to limit responses to discovery when producing ESI due to the limitations of their technology? 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.

Useful eDiscovery Information Resources: Evaluating Products and Services

This blog series – Useful eDiscovery Information Resources – is aimed at giving you information on resources available to eDiscovery professionals… resources aimed at education regarding eDiscovery and resources aimed at keeping professionals up to date regarding the latest and the greatest in the industry.  The first posts in the series can be found here, here, here,here, here, here, here, here, here and here.

_______________________________________________

For quality and efficiency purposes, most law firms and corporate law departments standardize on an approach to eDiscovery:

  • They create best practices for how eDiscovery will be handled.
  • They create guidelines for what tasks and volumes of materials will be handled in-house and what will get out-sourced to a service provider.
  • They standardize on a limited number of in-house tools that they’ll use for processing and reviewing eDiscovery.
  • They create a short list of approved online review tools that they’ll use when in-house resources aren’t sufficient for a project.
  • They’ll create a short list of approved service providers that they’ll use for various eDiscovery and litigation support services.

Selecting in-house tools to purchase and creating these service and product “approved lists” is not an easy task.  Done properly, it can take a lot of time.  And it’s not a one-time thing.  Products and service providers need to be routinely reviewed to ensure that they continue to be a good fit, and new technology and service providers should be evaluated.

As a first step, you need to ensure you really understand what the firm needs and wants, and you also need an understanding of the firm’s culture and its clients.  You need to have a good handle on the size of the cases handled by the firm, what attorneys expect of a product or a service, and what selection criteria is most important to the firm (is it price? Quality? Turn-around time?).  And of course, in this initial step, you may find that you have to educate yourself about emerging technology, and likewise educate the attorneys in your firm so that they make the right decisions regarding needs and wants.

Once you’ve got your selection guidelines in place, there’s the tedious task of evaluating and selecting the right products and the right service providers for your organization. You’ll rely on your own experience.  You’ll contact peers in the industry and get opinions from them.  You may post questions on the various internet forums to which you belong.

There are also a couple of web services that can help you here:

  • Apersee:  Developed by George Socha & Tom Gelbmann (the guys behind the Socha-Gelbmann Electrionic Discovery Survey and the EDRM), Apersee is a system for selecting e-discovery providers and products. This statement from the website’s About page best summarizes how it works: “The Apersee Selection Engine allows consumers to choose the criteria that matter most to them, assign priorities to those critera, evaluate the results, and modify their searches… “  Click here for more information on Apersee.
  • eDJ Matrix:  Created by eDJ Group Co-Founder Greg Buckles, the eDJ Matrix is an interactive, dynamic tool that provides information on and evaluations of eDiscovery solutions – both products and services. Click here for more information on the eDJGroup and the eDJ Matrix.

These resources can save you a lot of time – the folks behind these tools have done a lot of the leg-work for you. These tools can really help to narrow down the product and service provider candidates that are a good match for your firm.

I’ll be back next week with the next post in this resources blog series.  In the meantime, let us know if there are specific topics you’d like us to cover.

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.

What to Do BEFORE Your Laptop is Stolen – eDiscovery Best Practices

One of the earliest blog posts I ever wrote for this blog was regarding the myth of SaaS (Software-as-a-Service) security finally being busted and that SaaS data is much more difficult to steal than desktop application data, which “could be one stolen laptop away from being compromised”.  A little over three years later, I got to experience that scenario first-hand.

Last week, while stopping at a restaurant to wait out a flight delay to LegalTech New York (LTNY), my laptop was stolen.  Our bags were in my boss’s truck, a mere 12 feet away from the entrance to the restaurant, just around the corner.  The thieves knocked out the passenger side lock and (evidently) took the bags that they could carry, which was my two co-workers’ garment bags, my laptop and my boss’s travel laptop.  Apparently, my garment bags weren’t worthy enough to steal.  Not sure if that says anything about my wardrobe or not.  Hmmm…

Naturally, the restaurant didn’t have security cameras.  And, I never normally leave my laptop in a car.  The one time…

Anyway, no matter how secure your laptop is, when it’s stolen, you spend the next couple of hours changing every online password you can think of.  I changed eighteen of them.  I had unfortunately left a checkbook in my laptop bag, so I also had to call my bank and get some checks canceled.  The laptop itself had good laptop authentication security and I also use a strong password (which I’ve now changed, hah!), so it will be very difficult for the thieves to gain access to my data.

None of that data was client data as we keep that on a secured server which I access directly when in the office and via Sonicwall Virtual Private Network (VPN) when I’m out of the office.  Most of the data was previously written blog posts, some generic test data (Enron, anybody?) and various marketing materials or downloaded articles.

Nonetheless, losing that data would be inconvenient, so I’m a big proponent of cloud-based backups, which will back up data in the background while you’re working.  I also back up to a local external hard drive, so I’m a “belt and suspenders” backer-upper.  With a handful of exceptions (that I’ll unfortunately have to re-create) most of that data was backed up to one or both locations.

Lessons to learn: 1) Make sure to implement strong security on your laptop, with strong BIOS passwords and hard drive passwords.  Encryption and/or biometric security (through fingerprint identification) is even better.  2) Make sure your data is backed up regularly.  Cloud-based backups, like Dropbox and other services, are great because they back up data in the background so you don’t have to remember to do it.

Oh, and don’t leave your laptop in the car.  It only takes one time, as I unfortunately found out.

So, what do you think?  What measures do you use to protect your laptop data? Please share any comments you may 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 Awarded when Defendant Failed to Preserve Relevant Evidence – eDiscovery Case Law

In Zest IP Holdings, LLC v. Implant Direct Manufacturing, LLC., No. 10-0541-GPC(WVG), 2013 U.S. Dist. (S.D. Cal. Nov. 25, 2013), California Magistrate Judge William V. Gallo granted the Plaintiff’s motion for sanctions because parties are “required to preserve evidence relevant to litigation and to prevent spoliation.”  Judge Gallo found that the Defendant “failed to preserve multiple documents that are relevant to Plaintiff’s claims with the requisite culpable state of mind to support a finding of spoliation of evidence”.

The plaintiffs sought sanctions for the defendants’ alleged spoliation and other discovery abuses during this patent and trademark infringement action. The defendant was notified by letter on August 8, 2008 that it was believed the defendant’s product was an unlawful replica of the plaintiff’s product. The plaintiff sent a subsequent cease and desist letter with intentions to file suit on October 22, 2008.

Despite receiving these letters, the defendants continued manufacturing their product.  It was the defendant’s belief that because the plaintiff’s did not file their complaint until March 2010 that there was no duty on behalf of the defendant to preserve any documents, especially as the plaintiffs did not request this of the defendant. The plaintiffs requested sanctions because the defendants never instituted a litigation hold, did not take steps to preserve documents, and failed to instruct employees to preserve any documents.  Furthermore, the defendants had no backup storage system in place to prevent the destruction of documents. They initially believed e-mails were “‘automatically preserved” on a server under their control, however it was discovered that this was not the case and e-mails could be deleted.

The defendants argued that these omissions did not warrant sanctions due to their company policy, which stated that “no documents are to be deleted.”  It was further believed by the defendant that their employees would never delete any company documents. However, this contention was challenged when testimony from various employees who claimed they had, in fact, deleted e-mails. The CEO of the defendant company, Implant Direct Manufacturing, LLC, claimed in his deposition he had six e-mail accounts, however not one of the messages in these accounts were ever preserved or produced. In fact, he said he did not even bother searching these accounts for any relevant documents due to a file folder on his desktop where he saved all messages relating to the plaintiffs.

Judge Gallo found that the defendants’ duty to preserve documents began when they received the October 22, 2008 letter requesting the defendant cease and desist production of the product, as well as informing them of the plaintiffs’ intent to sue. The documents they destroyed thereafter were “highly probative” of the claims in the plaintiffs’ lawsuit and therefore the plaintiffs suffered prejudice as a result of the defendant’s actions. Additionally, the defendant failed to monitor its employees’ compliance with its so-called policy of saving all e-mails.  The defendants’ conduct, however, did “not rise to the level of bad faith sufficient to warrant default judgment under the circumstances”, but Judge Gallo found an adverse inference instruction proper under the Zubulake test.  Judge Gallo also awarded monetary sanctions because the defendants’ “negligence and their denial of spoliation of evidence caused delay and unnecessary costs that could have been avoided.”

So, what do you think?  Was Judge Gallo right to award sanctions? Please share any comments you may 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.

‘Discovery About Discovery’ Motions Lead to Unusual Court Decision – eDiscovery Case Law
 

In Ruiz-Bueno v. Scott, No. 2:12-cv-0809, 2013 U.S. Dist. (S.D. Ohio Nov. 15, 2013), a discovery dispute in this wrongful death case arose, leading Ohio Magistrate Judge Terence P. Kemp to arrive at the unusual decision to direct a party to provide ‘discovery about discovery.’

The dispute arose when the plaintiffs filed a second set of interrogatories. Due to concern regarding the small amount of electronically stored information (ESI) produced by the defendants during the first round of discovery, the plaintiffs sought to compel the defendants to answer two questions: “(1) what efforts they made to comply with plaintiffs’ previous discovery requests, and (2) what procedures or methods were used to search for responsive electronically stored information, or ESI.”

In response, the defendants offered a simple objection on the basis that information sought by the plaintiffs’ request was irrelevant and had “no bearing on any aspect of the case.” The defendants alleged that discovery is not a “claim or defense” in this particular case, and cited Fed.R.Civ.P. 26(b)(1), which limits the proper scope of discovery to “any nonprivileged matter that is relevant to any party’s claim or defense.”

Judge Kemp noted that not every case justifies directing council to provide discovery about discovery, but that the circumstances here required such direction, because the defendants were not “forthcoming with information needed to make further discussion of the issue a collaborative rather than contrarian process.” It was noted that the current dispute arose from the “plaintiffs’ distrust of the diligence with which defendants searched for ESI,” although it was conceded that the defendants likely believed they had “made a good faith effort to locate and produce all relevant emails.”

However, in this case the defendants had not collaborated with the plaintiffs to share information about their search protocols, other than to state that each of 50 defendants had been asked twice to produce their relevant emails. Judge Kemp noted that rather than relying on “50 different employees to search emails in some unspecified manner,” which likely resulted in searches carried out with different protocols—such as by sender, by recipient, by keyword, or by date, for example—the defendants could have instituted a controlled search that would have produce more comprehensive discovery responses.

Judge Kemp additionally noted that from personal observation and the “tenor of telephone conferences and written submissions,” it appears that there are issues in the relationship between counsel for the plaintiffs and counsel for the defense. It was recommended that counsel cooperate for the remainder of the discovery ahead, and for the potentially lengthy trial, in the interests of ensuring that processes are “cost-efficient for their own clients and for the Court.”

The defendants were directed to answer the plaintiffs’ interrogatories concerning ‘discovery about discovery,’ and also left with a standing order that presumes any issues remaining after the document retrieval process is satisfactorily described, will be addressed cooperatively by counsel.

So, what do you think? Should parties be permitted to compel answers concerning method of discovery in all cases when those methods are unclear? Should there be special exceptions, either for or against discovery about 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.

Thursday LTNY 2014 Sessions – eDiscovery Trends

As noted Tuesday and yesterday, LegalTech® New York 2014 (LTNY) is happening this week.  Today is the last day to check out the show if you’re in the cold and snowy New York area with a number of sessions (both paid and free) available and over 218 exhibitors providing information on their products and services.

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 41 hits.  More eDiscovery sessions still happening!  Here are some of the sessions in the main conference tracks:

10:30 – 11:45 AM:

The Changing of the Guard- How Cutting Edge Corporate Legal Departments Are Reinventing In-House eDiscovery

Nowhere is eDiscovery evolving more quickly than behind the scenes of some of the world’s most savvy enterprises. In this session, hear how cutting edge corporate legal teams have turned the tables on traditional eDiscovery approaches, effectively rewriting best practices for 2014 and beyond. Our panel of experts will discuss:

  • What are ways to significantly reduce legal spend and improve outcomes when managing eDiscovery
  • Why hybrid deployment models are quickly surpassing traditional, on premise only approaches
  • What are ways to revolutionize the communications patterns with outside counsel
  • What are the ROI metrics that really move the ball for forward thinking corporations

Speakers are: Dean Gonsowski, Vice President, Business Development and Head of Global Information Governance, Recommind; Marla Bergman, Goldman Sachs; Meghan Landrum, Google; Cliff Dutton, AIG.

Rightsizing Your Program to Get Funding and Succeed

Enterprise Information Governance programs are often as complex as the problems they are intended to solve, incorporating governance needs and requirements of a multitude of internal and external stakeholders while beholden to industry requirements and tight budgets. In this session, our panel of seasoned experts will help prepare attendees with best practices for breaking down the Information Governance equation in their or their clients’ organizations in order to kick-start an IG program. Topics to be explored include:

  • Assessing current realities to gain an understanding of what information-based threats and opportunities exist
  • Prioritizing threats and opportunities by evaluating risk/reward and estimating remediation ROI, including defensible deletion
  • Achieving cross-stakeholder support for development of an Information Governance framework and program

Panelists are: Julie J. Colgan, Director of Information Governance Solutions, Nuix; Galina Datskovsky, Independent Information Governance Consultant; Jason R. Baron, Of Counsel, Drinker Biddle & Reath; Dan Regard, Managing Director, iDiscovery Solutions; Susan Goodman, MLS, CRM, IGP, CIP, CIPP/US, Director, Records and Information Management (RIM), Consumer Reports.  Moderator: Barclay Blair, President and Founder, ViaLumina.

The TAR Workroom

Now that the industry has more TAR case history and experience to draw upon, workflow guidelines are emerging as well.  This panel will guide participants through a working session examining the lifecycle of a TAR project, including:

  • planning for a TAR project
  • establishing statistical goals based on selected TAR objectives
  • defining the TAR project team’s roles and responsibilities
  • evaluating TAR training options
  • devising QC strategies
  • assessing TAR results
  • deciding optimal pathways for strategic utilization of TAR results
  • documenting the project to ensure defensibility and replicability

Participants will emerge with an understanding of what it takes to plan and implement a successful TAR project.

Panelists are: Mira Edelman, Discovery Counsel, Google; Bennett Borden, Partner and Co-Chair of the Information Governance and eDiscovery Group, Drinker Biddle & Reath; Stuart LaRosa, Senior Search Consultant, Xerox; Julie Brown, Litigation Technology Executive Manager, Vorys, Sater, Seymour & Pease.  Moderator: Shelia Mackay, Vice President, Consulting, Xerox.

Transforming Discovery Through the Optimization of Legal Intelligencee

Accurately identifying potentially relevant documents in discovery is often described as finding needles in a haystack.  With data growing exponentially, legal counsel is struggling to control the size of the haystack.  However, they can now effectively identify where the needles reside earlier in the process with greater accuracy than ever.   By combining technology and analytical expertise, it is now possible to gather early stage legal intelligence to develop case strategy and efficiently zero in on the needles in mountain of hay.

Speakers are: Dave Deppe, President, UnitedLex; Christine Hasiotis; Senior Counsel & GE Legal Support Solutions Leader, Electric Insurance Company; Jason Yurasek, Litigation Partner, Perkins Cole; Mark McGrath; Associate, Sheppard, Mullin, Richter & Hampton LLP; Jack Halprin, Head of eDiscovery, Enterprise, Google; Farrah Pepper, Executive Counsel – Discovery, General Electric Company.

12:15 – 1:30 PM:

The rise of the machines? How computers can amplify human intelligence, not replace it.

Since the dawn of time, the ability to make, use and refine tools and machines has helped define and advance the human race. Now more than ever, assistance from technology is paramount in our world. We see and interact with it every day, from our smart phones and tablets to our vehicles and homes. This assistance is equally as important in our industry, with data volumes and client expectations growing at an exponential rate; humans alone can’t keep up.  In this session, you will learn about the different techniques and approaches for assistive technology and how it applies to eDiscovery including:

  • Artificial Intelligence vs. Amplifying Human Intelligence
  • How Human-Machine symbiosis is the next generation of assistive technology
  • The key differences between TAR, CAR, and Predictive Coding
  • How to successfully apply utilize this capability in eDiscovery

Speakers are: Neil Etheridge, Recommind; Patrick Oot, Electronic Discovery Institute; Daniel Lim, Former VP & Deputy G, Guidance Software, Inc.

TAR Ethics Lab – ABA & State Ethics Rules

This program addresses the ethical and legal consequences of using TAR in the context of a shifting landscape of governing rules. Through this interactive lab, participants will become better prepared to meet their ethical and legal obligations and help their clients contain ever-mounting e-discovery costs.

Last year, the American Bar Association (ABA) approved an important new resolution under the duty of competence (Model Rule 1.1) that requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology …”  Amendments to rules on communications with clients (Model Rule 1.4), confidentiality (Model Rule 1.6), and supervision (Model Rule 5.3) also impact the use of TAR.  Various state ethics rules have since followed.

In addition, significant changes to the Federal Rules of Civil Procedure regarding e-discovery have been drafted, but the debate continues under Congressional review before any changes go into effect near the end of 2015.

This panel will guide participants through real-life TAR scenarios that promote an understanding of the new ethical and legal landscape of e-discovery.

Panelists are: Anthony Diana, Partner, Mayer Brown; Julie Brown, Litigation Technology Executive Manager, Vorys, Sater, Seymour & Pease.  Moderator: Gabriela P. Baron, Senior Vice President, Xerox.

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

So, what do you think?  Have you attended LTNY this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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