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Electronic Discovery

A Funny Thing Happened On the Way to LegalTech – eDiscovery Trends

The weather spared the big game, but came back with a vengeance yesterday.  Was your flight delayed or cancelled trying to get into New York?  For us too – twice.  Oh, and our laptops were stolen while we stopped off at a restaurant to wait out yesterday’s delay.  Don’t get us started.

Anyway, hopefully the rest of you made it, despite the weather.  As noted yesterday, LegalTech® New York 2014 (LTNY) is happening this week and there’s still two more days to check out the show if you’re in the 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” and you’ll get 53 hits.  More eDiscovery sessions happening!  Here are some of the sessions in the main conference tracks:

9:05 – 10:00 AM:

Day Two Keynote General Session Presentation – Judges Panel: Changing Rules and Best Practices in e-Discovery – Open to All

When it comes to legal technology, few names are more synonymous with the industry than those of our day two panelists. We are thrilled to welcome Judges Lee Rosenthal, Shira Scheindlin, John Facciola, James Francis and Andrew Peck to the keynote stage at LegalTech.  Never before has LegalTech had the privilege of having these five judges grace the stage at the same time.  Plan to arrive early for what promises to be the most insightful and provocative session at LegalTech 2014.

E-Discovery Special Master Craig Ball will lead the discussion, as the judges share their views on today’s legal landscape with an eye towards what the future holds.  Our e-Discovery pioneers will share their experiences and viewpoints to help attendees best prepare for the law and practice of tomorrow.

Panelists are: Honorable Lee H. Rosenthal, United States District Judge, Southern District of Texas; Honorable Shira A. Scheindlin, United States District Judge, Southern District of New York; Honorable John M. Facciola, United States Magistrate Judge, District of Columbia; Honorable James C. Francis, United States Magistrate Judge, Southern District of New York; Honorable Andrew J. Peck, United States Magistrate Judge, Southern District of New York.  Moderator: Craig Ball, Attorney and Forensic Technologist, Certified Computer Forensic Examiner.

10:30 – 11:45 AM:

Predictive Coding and Analytics Applied on Three Common Scenarios

Analytics can help supplement predictive coding – by visually clarifying its results, accelerating review of the remaining materials, and even assisting in trial and deposition preparation. Using a case study approach, attendees will learn how to develop workflow incorporating both predictive coding and analytics for three common e-discovery scenarios.

Panelists are: Hon. Andrew J. Peck, United States Magistrate Judge,Southern District of New York; Eric Lieber, Director of Legal Technology, Toyota Motor Sales, USA; Jason Lichter, Director of Discovery Services and Litigation Support, Pepper Hamilton LLP.  Moderator: Kathryn McCarthy, Senior Managing Director,  FTI Technology.

The Evolution of Information Governance: Predictive Governance

Predictive Coding technology has already been successfully used for information Governance including defensible disposal use cases. In this session we will explore how the “train by example” iterative training process can be used to train an information governance system to categorize gigantic unstructured data set quickly and accurately and we will explore how predictive technologies can be used to create highly accurate and consistent automated information governance solutions.

Speakers are: Barclay Blair, ViaLumina; Bennett Borden, Partner and Co-Chair of the Information Governance and eDiscovery Group, Drinker Biddle & Reath; Dean Gonsowski, Vice President, Business Development and Head of Global Information Governance, Recommind.

Have we Reached a “John Henry” Moment in Evidentiary Search?

Humans have always played a large role in document review, but the advent of predictive coding raises significant questions about the role of the human reviewer in the future of ediscovery. Is there room for both human and machine in ediscovery, or are human reviewers, like the great John Henry, doomed to become irrelevant by faster, more efficient machines?

Join us as we discuss the evolving role of the human reviewer as the ediscovery community grows increasingly comfortable with technology assisted review.

Speakers are: Ralph Losey, Jackson Lewis; Cliff Dutton, AIG; Jason R. Baron, Drinker Biddle & Reath.  Moderator: Eric Robinson, Kroll Ontrack.

Discovery Insourcing v. Outsourcing – Finding the Right Balance for Your Organization

As Legal Departments continue to face significant resource constraints, identifying new ways to achieve cost savings and efficiencies can make a real impact.  These savings can often be achieved through implementing new technologies for culling and review, as well as reevaluating the internal and external discovery support model to ensure the right resources are doing the right tasks.  Creative and competitive outsourced pricing models have allowed some to get the best of both worlds – reduced risk and cost predictability combined with the latest technology and scalable resources.   Others have found success with increased insourcing often through better partnerships between Legal and IT and creating centralized functions with skilled discovery resources on hand.  This session will focus on innovative options to strike the right balance between insourcing and outsourcing to achieve high levels of cost savings.

Speakers are: Pamela M. Pearson, Managing Counsel, Wells Fargo; Constance Mockaitis, Manager, eDiscovery Legal Operations, AbbVie, Inc.; Jenya Moshkovich, Associate, Patterson Belknap Webb & Tyler.  Moderator: Stacie Neeter, Senior Director, Huron Legal.

12:30 – 1:30 PM:

Day Two General Session: eDiscovery without the Strings Attached: how the Cloud will Change eDiscovery in 2014 and Beyond – Open to All

Since the inception of eDiscovery, the range of technology solutions available – to help organizations address growing data volumes and rapidly respond to a legal matter – have been somewhat limited.  Options included buying and deploying software for use behind the firewall, or paying a third party to host the technology for you.  The Cloud is changing the paradigm and providing those organizations that don’t have the infrastructure and resources for an in-house solution, or that don’t have the appetite to pay additional fees to a middle man, with a third viable option.  In this session, learn how Cloud-based solutions will change the face of eDiscovery by combining control and flexibility with convenience and cost efficiency.

Panelists are: Timothy Carroll, Partner, Perkins Coie LLP; Alan M. Winchester, Partner, Harris Beach PLLC; Gareth Evans, Partner,Gibson, Dunn & Crutcher LLP.  Moderator: George Tziahanas, SVP, Legal and Compliance Solutions, HP Autonomy.

2:00 – 3:15 PM:

Advice from Counsel: One Small Step for E-Discovery, A Giant Leap for Information Governance?

For the fifth consecutive year, the Advice from Counsel survey captures the top e-discovery trends for corporate counsel of Fortune 1000 companies.  This year the survey focuses on the intersection of e-discovery and information governance. Just as common e-discovery workflow and technology can help legal teams  proactively manage data as part of a broader information governance strategy, these strategies promise to reshape e-discovery practices in the coming years. Whether in-house or outside counsel, attendees will learn how leading-edge companies are approaching information governance and how this will impact legal processes for years to come.

Panelists are: Marla Bergman, Vice President, Associate General Counsel, Goldman Sachs; Anthony Knaapen, Manager of Litigation Discovery, Chevron; Ari Kaplan, Principal, Ari Kaplan Advisors.  Moderator: Sophie Ross, Senior Managing Director, FTI Technology.

The End of Predictive Coding?

2012 was haled as the year of predictive coding. 2013 was declared to be the year of information governance. So as 2014 begins we are faced with the question of what’s next in eDiscovery? In this session we will explore how the concept of predictive coding has evolved and consider if 2014 will mark the end of predictive coding as we know it. Come to learn how the barrier between lawyer and machine is eroding and how real time interaction with advanced analytics is the next big thing in eDiscovery.

Panelists are: Steve Berrent, WilmerHale; Drew Lewis, Recommind.  Moderator: Phil Favro, Recommind.

The Ediscovery Pulse: Metrics You Need to Know

If you have been looking for benchmarks to compare, forecast, or evaluate your ediscovery performance, this session is for you! A panel of judges and ediscovery experts will review and discuss real-time, trended data pulled from thousands of consolidated matters that show key trends and changes in the ediscovery market. Examples of the metrics our panel will discuss include:

  • The average number of custodians per matter
  • The percentage of data processed that is email
  • The average number of produced gigabytes

Panelists are: Wendy Butler Curtis, Orrick; Emily Cobb, Ropes & Gray; Eli Nelson, McKenna Long & Aldridge; Lynn Looby, Dow Chemical.  Moderator: Dean Hager, President & CEO, Kroll Ontrack.

Dispelling Myths: Understanding the Risks of Discovery Outsourcing

Outsourcing discovery is not a new concept in today’s legal landscape. Clients and counsel are always looking for new and innovative ways to balance the duty to preserve and produce information while attempting to add predictability with ever-growing legal expenses. Many law departments have formed strong opinions about whether outsourcing all or some portion of the discovery function is the best approach for their organization. While some view outsourcing as an important part of managing their discovery workload and scaling to meet the unpredictable demand, others shy away from using outside resources. Over time, competing opinions have given rise to confusion, fears and myths that may prevent companies from reaching the most efficient, affordable and effective balance in the discovery process. This session will focus on dispelling the myths often associated with outsourcing and will discuss a range of options, models and lessons learned through years of experience.

Panelists are: Dustin Guzior, Desmarais LLP; David Stanton, Pillsbury Winthrop Shaw Pittman LLP; Tom Mullane, United Technologies Corp. (UTC); Dawson Horn, American International Group (AIG).  Moderator: Royce Cohen, Stroock & Stroock & Lavan LLP.

3:45 – 5:00 PM:

Global Discovery: Asia, Europe and Beyond

Even if you are not handling matters in Asia or Europe today, you will be within the next three years. From country-specific data privacy laws to cultural and language differences, US-based companies and firms have a number of challenges when conducting cost-effective and defensible e-discovery practices overseas. Incorporating survey results from leading e-discovery practitioners in Asia and Europe, this panel will provide US-based attorneys with a framework for managing multinational discovery matters effectively.

Attendees of this session will learn about:

  • The evolving data privacy regulatory environment across Asia and Europe
  • Common cross border scenarios and key “dos and don’ts” for maintaining data privacy compliance
  • Case studies of recent multinational discovery projects and additional resources

Panelists are: Craig Earnshaw, Senior Managing Director, FTI Technology; David Horrigan, Analyst & Counsel, Content Compliance and Legal Technologies,451; Gareth Evans, Partner, Gibson Dunn; Ellen Frye, Litigation Associate, Simpson Thacher & Bartlett LLP; Jennifer Hamilton, Senior & Global eDiscovery Counsel, John Deere.

Navigating the Technology Minefield – Managing Discovery Challenges from the Cloud, Social Media and BYOD

Just as organizations were becoming comfortable managing discovery within traditional IT environments, technology leaps forward, presenting new opportunities and new challenges.  The growth of emerging technologies such as Cloud Computing, Social Media and Bring Your Own Device (BYOD) has enabled organizations to reduce costs, while improving scalability, productivity, visibility, communications and customer service.  These innovations, combined with increasing globalization, also introduce new information management challenges and potentially security and privacy risks.  Today’s environment requires new strategies, governance, policies, procedures and systems to effectively manage data and administer a successful discovery program.

Panelists are: Dan Coppola, Huron Legal; Sabrina Mizrachi, FMC Corporation; Jeff Fuisz, Kaye Scholer.

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?  Did you make it into 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.

Welcome to LegalTech New York 2014! – eDiscovery Trends
 

Today is the start of LegalTech® New York 2014 (LTNY) and, for the fourth year in a row, eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the New York area, I encourage you to check out the show – there are a number of sessions (both paid and free) available and over 218 exhibitors providing information on their products and services.

While at the show, we will (also for the fourth year in a row!) be interviewing several industry thought leaders to see what they think are the significant trends for 2014 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 60 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

10:30 – 11:45 AM:

Cost Control – Enterprise Discovery Management Metrics and Repeatable Processes

The need for electronic discovery will not diminish in the short term which invites an opportunity to apply quantitative methods into the process in order to more effectively manage the people, process and technology.  Tools and techniques, which can provide appropriate Project Planning which can lead to efficient/comprehensive Project Execution, Monitoring and Control.  Lastly, capturing metrics/lessons learned for integration into the Optimization of the enterprise process is a key component contributing to process maturity.

  1. Breakdown of EDRM In-house and Teaming with your Service Provider (5 minutes)
  2. Project Planning – Types of information which help with decision making and cost avoidance
  3. Project Execution – Develop/Acquire Project Team, Quality Assurance, Information Distribution
  4. Monitoring – Real-time reporting on Process, People and leveraging Technology
  5. Lessons Learned – Leveraging Organizational Process Assets (“OPAs”)

Panelists are: Kelly Lack, Counsel, Pacific Gas & Electric Company; Brett Tarr, Director of eDiscovery, Caesars Entertainment, Inc.; Scott A. Carlson, Chair, National eDiscovery Practice Group, Seyfarth Shaw LLP.  Moderator: Rick Nalle, Director, Forensic Technology Services, KPMG LLP.

Is the Best Defense a Good Offense? Proactively Manage Information Governance to Control eDiscovery

The sheer volume of enterprise data is permanently affecting how organizations prepare for eDiscovery.  Even with advanced predictive analytics, it is fast becoming a mathematical impossibility to respond quickly and efficiently to a legal matter when nets are cast wide across many data silos.   This expert panel discusses information governance best practices that can help you proactively prepare for litigation, using methodologies that drive down time and cost while retaining quality and defensibility.

Panelists are: Bennett B. Borden, Co-chair of the Information Governance and eDiscovery Group, Drinker Biddle & Reath LLP; Barry Murphy, Co-Founder, Principal Analyst, eDJ Group, Inc; Jason R. Baron, Information Governance and eDiscovery Group, Drinker Biddle & Reath LLP.  Moderator: Brian Weiss, VP Subject Matter Experts, HP Autonomy.

Optimizing People, Process, and Technology to Minimize the Total Cost of Discovery

This session will explore how corporate legal departments can take a holistic approach to discovery strategy, and better understand the primary factors that drive cost – people, process, and technology. By optimizing each of these factors, the discovery process becomes more predictable, efficient, and cost-effective:

People: Are the right resources performing each task in the discovery process? Is each participant in the process working to his/her core competencies?

Process: Is the process defined and documented? Does it appropriately balance efficiency and risk-reduction? Are effective QC and QA measures incorporated?

Technology: Is the organization taking full advantage of available technologies, consistent with its risk tolerance? Are outdated technologies driving greater expense and inefficiency?

Speakers are: Maureen O’Neill, SVP, Discovery Strategy (West), DiscoverReady; Casey Flaherty, Corporate Counsel, Kia Motors; Jessica Watts, Associate General Counsel – Discovery, Hewlett-Packard; Alex Ponce de Leon, Discovery Counsel, Intel Corporation; Marla Bergman, Vice President, Associate General Counsel Legal and Regulatory Proceedings, Goldman Sachs.

Doing It Right:  Combining Technology and Cooperation in eDiscovery

“Cooperation” and “transparency” became the buzzwords in 2008, when The Sedona Conference issued its Cooperation Proclamation.  Since then, the world of e-discovery has evolved at warp speed.  Volume has exploded.  Complexity has increased.  Judicial expectations have evolved.  At the center of it all, advancing technology has changed everything.. 

Ariana Tadler, Partner at Milberg LLP and Chair Emeritus, as well as an active member of The Sedona Conference® Steering Committee for Working Group I, leads a panel of eDiscovery thought leaders and practice experts in an overview of eDiscovery in 2014:

Attend this session to learn more about how to proactively combine technology and cooperation to “do e-discovery right,” including:

  • When and how to use cutting edge technologies – and when to avoid them
  • Updates on current “best practices” and judicial expectations
  • How to cooperate in the world of technology-assisted review
  • How to deal with the “pretend cooperator”

Gain from the experience and expertise of seasoned eDiscovery professionals in this mixture of discourse and dialogue.

Panelists are: Maura R. Grossman, Of Counsel, Wachtell, Lipton, Rosen & Katz; Ronni Solomon, Partner, King & Spalding; Conor Crowley, Chair of the Steering Committee, The Sedona Conference Working Group on Best Practices for Electronic Document Retention and Production.  Moderator: Ariana J. Tadler, Partner, Milberg LLP.

2:00 – 3:15 PM:

The New Frontier: Predictive Coding for Information Governance

Predictive coding is widely used in e-discovery, and its defensibility has been broadly recognized in US courts. The question is — can the same technology be used to implement an organization’s information governance policy? The basic concept is simple: train the predictive coding system to identify documents belonging to the organization’s retention categories. But does it work?  How do you start? Who should own the process? What are the challenges? What are the benefits? And is it defensible? In this session, our panel will address these issues, bringing to bear their first-hand experience, over the last year, in groundbreaking predictive coding projects in the information governance space.

Panelists are: John Rosenthal, Partner, Chair, E-discovery and Information Management Practice, Winston & Strawn; Bennett Borden, Partner, Drinker Biddle; Barclay Blair, President, ViaLumina; Laura Kibbe, Managing Director, Expert & Professional Services, Epiq. Moderator: Warwick Sharp, Vice President Marketing and Business Development, Equivio.

The Evolution, Uses, and Case Studies of Technology Assisted Review

Many forms of what is called “Technology Assisted Review” (TAR) exist today. Once a controversial and heavily scrutinized method of analysis and review is now gaining mainstream acceptance. Join this session to hear about recent case opinions on TAR and how its variations are applied to specific use cases.

Panelists are: Anthony J. Diana, Partner, Mayer Brown; Maura R. Grossman, Of Counsel, Wachtell, Lipton, Rosen & Katz; The Honorable Dave Waxse, U.S. Magistrate Judge, District of Kansas. Moderator: Eric Crespolini, VP eDiscovery Solutions, HP Autonomy.

Dipping a Toe in the Waters of Predictive Coding and Advanced Analytics – How to Use a Little Cutting-Edge Technology to Make Document Review a Lot Better

This panel will examine the lowest-risk use cases for incorporating predictive coding, statistical sampling, and other advanced analytics into a document review workflow, with little added risk or disruption to established processes. Attendees will come away with ideas for “painless” ways of adopting these tools to improve the efficiency and effectiveness of document review, such as:

  • Prioritizing review
  • Reviewer QC
  • Basic statistical sampling for quality control and quality assurance
  • The latest techniques for email near-dupe grouping and threading
  • Coding propagation

Speakers are: Matt Miller, SVP, Discovery Strategy (East), DiscoverReady; Michelle Spak, Senior Counsel, Duke Energy; Marty Thompson, Senior Counsel, Hess Corporation; Shannon Capone Kirk, E-Discovery Counsel, Ropes & Gray; Thom Wisinski, Chief Knowledge Officer, Haynes & Boone LLP.

Information Governance Best Practices: Taking your Organization to the Next Level

Find out why regulatory compliance and its enforcement ranked as the second most significant threat to organizational growth after economic uncertainty.

  • Do you know how poorly controlled data governance programs increase legal and regulatory risk?
  • Do you know how data is identified, collected, and used during litigation and investigations
  • Can you articulate how to improve compliance, data privacy and information security relative to data governance?

Join Grant Thornton’s Johnny Lee and a panel of experts’ in an in-depth look at the business, litigation and compliance drivers of data governance.  Find out why compliance, IT and legal expert s must collaborate to design sustainable policies and learn how case law, technology and best practices are used as the framework for sound Information Governance practices that mitigate risk.

Panelists are: David Horrigan, Esq., Analyst & Counsel, Content Compliance & Legal Technologies, 451 Research; M. Darren Traub, Partner, Litigation Practice Group, Akerman; Joshua R. Cohen, Partner, Garson DeCorato & Cohen LLP; Gail L. Gottehrer, Partner, Axinn, Veltrop & Harkrider LLP. Moderator: Johnny Lee, Managing Director – Forensic, Investigative & Dispute Services, Grant Thornton LLP.

3:45 – 5:00 PM:

The Three Rs of Enterprise Discovery Management

As the electronic discovery industry continues to mature, so must the underlying processes. Enterprises are moving away from an ad-hoc, single-matter reactive response model managed by outside counsel toward the creation of an internally-managed, e-discovery eco-system built on three fundamental Rs:

  • Reduce the volume of data potentially subject to e-Discovery
  • Re-use work product ranging from privilege keyword lists to past production sets
  • Recycle past project knowledge and transform this information into not only more efficient e-Discovery methodologies, but also process improvements that can help the business.

Panelists are: Michael Fluhr, Discovery Counsel, Carroll Burdick & McDonough LLP; Kim-An Hernandez, Senior Counsel, International Paper Company; David Stanton, Partner, Pillsbury Winthrop Shaw Pittman LLP. Moderator: Daryl Teshima, Managing Director, Forensic Technology, KPMG LLP.

E-Discovery Caselaw Update

Each year, courts across the country issue hundreds of decisions addressing e-discovery issues. In this program, the panel will take a look at the most significant decisions over the last year, and analyze the state of the law on the most important issues. They will also share their views on how the opinions in 2013 foreshadow trends in 2014.

Speakers are: Amy Hinzmann, SVP, Managed Review, DiscoverReady; Ruth Hauswirth, Special Counsel and Director of Litigation and E-Discovery, Cooley LLP; Scott Coonan, Senior Director of IP, Litigation & Strategy, Juniper Networks; Kelly Lack, Attorney, Litigation Group, Pacific Gas & Electric Company; Jay C. Carle, Partner, E-Discovery and Information Governance, Seyfarth Shaw.

eDiscovery Ethics

The world of eDiscovery hinges on what comes down from the bench.  This session will feature a one-on-one casual conversation on the state of today’s eDiscovery market.  Hear from Judges Andrew Peck and James C. Francis as they discuss their views on the pertinent challenges and issues facing the industry today.  This intimate session will allow attendees true insight into the view from the bench to fully understand where the market is heading and how to best keep ahead of the game.

Speakers are: Honorable James C. Francis, United States Magistrate Judge, Southern District of New York; Honorable Andrew J. Peck, United States Magistrate Judge, Southern District of New York. Moderator: Anita Engles, Vice President of Product Marketing, Daegis.

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

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

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

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine 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 of Privileged Documents and Form of Production Addressed in Ruling on Second Motion to Compel – eDiscovery Case Law
 

In RPM Pizza LLC v. Argonaut Great Central Insurance Co., No. 10-684-BAJ-SCR, 2013 U.S. Dist. (M.D. La. Nov. 15, 2013), Louisiana Magistrate Judge Stephen C. Riedlinger delivered a partial ruling on a Second Motion to Compel the Production of Documents and Interrogatory Responses filed by the plaintiffs, who filed the motion in effect to renew their previous motion to compel, to which the defendant did not respond in a timely manner. Largely due to the delayed response, Judge Reidlinger ruled in favor of the plaintiff on several aspects of the motion.

In both the original and second motion to compel, the plaintiff alleged that the defendant’s production of discovery documents was deficient in multiple ways. First, the defendant produced 555 documents in response to discovery requests, of which 520 had already been provided to the plaintiff. Second, the documents produced did not provide answers to the interrogatories posed in discovery, and those which answered three of the 17 Requests for Production were highly unlikely to include all of the documents that were responsive to those requests. Finally, the plaintiff objected to the quality and format of the production—specifically, that the defendant had provided PDF files without metadata instead of TIFF with metadata.

The defendant not only opposed the motion, but also sought an award for expenses and fees they had incurred to oppose. The defendant stated that the motion should be denied, since the response was supplemented voluntarily upon the Second Motion to Compel, and a privilege log was produced.

The plaintiff contested the form of production for the privilege log, asserting that it did not contain enough detail to determine whether the documents were in fact privileged. The supplied log indicated that the plaintiff had withheld documents that were “‘NRC’ (not reasonably calculated), or ‘CPTS’ (confidential, proprietary and/or trade secret)” rather than privileged. Furthermore, the plaintiff asserted, the defendant’s statement that it would rely on an advice-of-counsel defense for discovery responses meant that the defendant had waived the attorney-client privilege.

While the defendant acknowledged that its privilege log lacked the required detail, it asserted that there was insufficient time to prepare, since it had reviewed “thousands of documents on short notice” in response to the plaintiff’s “unreasonably broad discovery requests.” Furthermore, the defendant claimed that it experienced “unexpected technical issues with electronic discovery” and requested a time extension for completing the privilege log.

In his decision, Judge Reidlinger agreed that the defendant had waived the claim of privilege over withheld documents, and found the defendant’s justification for the deficiencies and delays in producing the privilege log to be “vague, unsupported, and unpersuasive.” Additionally, Judge Reidlinger dismissed the excuses of tight deadlines and time constraints because, according to the record, “the cause of Argonaut having to review and produce thousands of documents on short notice and in a short period of time is Argonaut’s own failure to take prompt, appropriate actions when it was served with the plaintiff’s discovery requests on April 19, 2013.” The 555 pages of mostly duplicate documents were not produced by the defendant until six weeks after the plaintiff’s first motion to compel was filed.

Finally, the defendant’s general objection to document production in a “particular format or matter” was overruled, due to the plaintiff’s right under Federal Rule of Civil Procedure 34(b)(2)(E) to specify a form of production without the need to prove why a specific form was necessary—and due to the defendant’s failure to specifically object to the form of production until its delayed supplemental response. The defendant was ordered to produce the documents in the requested format, with metadata.

So, what do you think? Should a delayed response result in stricter enforcement of discovery responses? How much does document format matter? 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.

Quinn Emanuel Sanctioned for Inadvertent Disclosure, Samsung Escapes Sanction – eDiscovery Case Law

California Magistrate Judge Paul S. Grewal has now handed down an order on motions for sanctions against Samsung and the Quinn Emanuel law firm in the never-ending Apple v. Samsung litigation for the inadvertent disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate”.

After discovery on the matter, Judge Grewal ruled as follows:

“Quinn Emanuel shall reimburse Apple, Nokia, and their counsel for any and all costs and fees incurred in litigating this motion and the discovery associated with it, as required by Rule 37 in the absence of ‘substantial justification’ or other showing of ‘harmlessness,’ neither of which the court finds here. That expense, in addition to the public findings of wrongdoing, is, in the court’s opinion, sufficient both to remedy Apple and Nokia’s harm and to discourage similar conduct in the future.”

Basically, Judge Grewal determined that “what began as a chorus of loud and certain accusations had died down to aggressive suppositions and inferences, and without anything more, Quinn Emanuel and Samsung cannot reasonably be subject to more punitive sanctions”.

Apple and Nokia had proposed a number of “creative” sanctions that Quinn and Samsung ranging from an injunction against Samsung in the case to a ten-year ban from representing any party adverse to Nokia – suggestions that Judge Grewal referred to as “ludicrously overbroad”.

For a link to the order, click here.

For our previous coverage of the case, click here, here, here, here and here.

So, what do you think?  Did Samsung and Quinn Emanuel get off lightly?  Or was the sanction appropriate?   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.

If You’re Going to Attend Just One Session at LegalTech Next Week, Make it This Session – eDiscovery Best Practices

In just a few days, there will be big happenings in the New York area!  No, I’m not talking about the big game, I’m talking about the biggest legal technology event of the year, LegalTech New York (LTNY).  If you’re going to be attending the conference this year (and, if not, why not?), here is a session that is a “must attend” for anyone who wants to know leading judges’ perspectives on eDiscovery rules changes and best practices.

On Day 2 of the conference, Wednesday, February 5 at 9:00am, eDiscovery industry expert Craig Ball will lead a discussion with five renowned judges who have had significant impact on how lawyers manage legal technology.  The Day Two Keynote General Session Presentation – Judges Panel: Changing Rules and Best Practices in e-Discovery will include Craig and the following judges:

  • Honorable Lee H. Rosenthal, United States District Judge, Southern District of Texas
  • Honorable Shira A. Scheindlin, United States District Judge, Southern District of New York
  • Honorable John M. Facciola, United States Magistrate Judge, District of Columbia
  • Honorable James C. Francis, United States Magistrate Judge, Southern District of New York
  • Honorable Andrew J. Peck, United States Magistrate Judge, Southern District of New York

Most of these judges were discussed in Lisa Holton’s article (E-Discovery: A Front-Row Seat) as “trailblazing” judges in The American Lawyer (we covered it here) and we’ve covered a number of their decisions and opinions over the history of this blog.

As the summary of the session notes, when it comes to legal technology, few names are more synonymous with the industry than these panelists.  Craig will lead the discussion, as the judges share their views on today’s legal landscape with an eye towards what the future holds.  These eDiscovery pioneers will share their experiences and viewpoints to help attendees best prepare for the law and practice of tomorrow.

Craig referenced the session in his own excellent blog, Ball in Your Court, here. As Craig notes, “The judges will be discussing some of what you might expect, e.g., proposed Rules amendments, predictive coding, Rule 502 and expectations of lawyer technical competence.  We will also be exploring a few fresh issues, like the impact all those little screens are having on everyone in and out of court.”   Craig also indicated that there was “still time to add topics and questions of interest to you” – if there is a topic you would like him to cover, you can post a comment to his blog post here or email him at craig@ball.net.

Because this session is a Keynote General Session, it’s open to all attendees, so, if you’re at the show next week, this session is a must see.  Don’t miss it!

LTNY starts next Tuesday and eDiscovery Daily will be covering the show for the fourth straight year.  We will also be conducted our thought leader interview series at the show again for the fourth straight year as well!  After the show, we will publish the schedule for posting the interviews.  Stay tuned!

So, what do you think?  Are you attending LTNY this year?  Do you plan to attend this session?  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.

ESI Cost Budget Calculator – eDiscovery Best Practices

Last month, we discussed budget calculators available from the Metrics section of the Electronic Discovery Reference Model (EDRM) web site.  So far, we have reviewed three budget calculators, the E-Discovery Cost Estimator for Processing and Review, the Doc Review Cost Calculator and the EDRM UTBMS eDiscovery Code Set Calculator. Here is the fourth and final calculator (currently) on the site, the ESI Cost Budget Calculator, provided by Browning Marean, DLA Piper law firm.

As described on the site, this budget calculator estimates costs by project phase. The phases are:

  • ESI Collection
  • ESI Processing
  • Paper Collection and Processing
  • Document Review
  • Early Data Assessment
  • Phase 1 Review
  • Phase 2 Review
  • Production
  • Privilege Review
  • Review of Opposition’s Production
  • Hosting Costs

This single-sheet Excel cost calculator is nice and straightforward.  It covers collection through production, even including a section for review of your opponent’s production and hosting costs (which are becoming more commonplace as more organizations choose cloud-based solutions for their eDiscovery needs).  Two things that I particularly like is that it provides a sequential “line” column to make it easier to refer to a particular line item and also a comments/assumptions column for documenting (what else?) your comments and assumptions.  I also like that all of the numbers are in one column (column C), making it easier to follow the cost computations.  The sheet also includes a header at the top with a place to enter the matter name and date of the estimate.

Suggestions for improvement:

  • As the site indicates, cost calculations, by phase and in total, are shown in the yellow cells.  However, there are several other calculated cells that are in white (the same color as the enterable cells).  It would be easier and clearer to identify the enterable cells if all of the calculated cells were in a different color to differentiate them from the enterable cells (maybe a third color to differentiate them from the cost calculations cells);
  • Protect the sheet and lock down the computed cells (at least in the main sheet) to avoid accidental overwriting of calculations (with the ability to unprotect the sheet if a formula requires tweaking);
  • Tie a pie chart to the numbers to represent the portion of each phase to the total eDiscovery cost for the project.

This workbook would certainly be useful for tracking eDiscovery costs from collection to production, using the metrics appropriate for each section (e.g., custodians and GB for collection, total files and review rate for the review phases, etc.).  It would also be great to update as the phases progress to continue to refine your project estimate.  You can download this calculator individually or a zip file containing all four calculators here.

So, what do you think?  How do you estimate eDiscovery 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.

Federal Circuit Reduces Award for Defendants Based on Costs of Digital Copies – eDiscovery Case Law

In Phillip M. Adams & Associates, L.L.C. v. Sony Electronics Inc., No. 1:05-CV-64 TS, 2013 U.S. Dist. LEXIS 160728 (D. Utah Nov. 7, 2013), a Federal Circuit court limited awards for the defendant with regard to the costs of digital copies, in a decision that followed the reasoning of the Third Circuit and Fourth Circuit in prior cases.

The initial case and jury trial was brought by plaintiff Phillip M. Adams & Associates, with allegations of patent infringement and trade secret misappropriation against Sony Electronics. In this Federal Circuit case brought on appeal, the court reversed an adverse interference sanction against the defendant imposed by the district court during the jury trial. However, the Federal Circuit upheld the grant of summary judgment in favor of the plaintiff.

After the decision to reverse the sanction, the Federal Circuit turned to the defendants’ request to seek their court costs in the case. The Clerk of Courts taxed costs in favor of the defendants in the amount of $168,812.39, a decision that resulted in motions filed by both the plaintiffs and defendants—the plaintiffs seeking to deny the request, and the defendants looking for allowance of additional costs.

The plaintiffs contested the award for several reasons, one being that the defendants had destroyed evidence, as found by the district court and upheld by the Federal Circuit. However, the court did not grant the plaintiffs’ request for dismissal due to the finding that the district court’s adverse interference sanction had been improper, and further that the plaintiffs “failed to present substantial evidence of infringement within the United States after May 3, 2001.” Additionally, the court stated that with the improper sanction, “it seems to follow that sanctions in the form of reduced or eliminated costs would also not be proper.”

However, the reward was reduced by 25%, due in part to the admittance of the defendant that some costs did not relate to a particular claim for which the two parties had previously agreed to bear their own costs.

The Federal Circuit then addressed the additional costs requested by the defendants totaling more than $60,000 for exemplification and for making copies. The breakdown of costs cited by the defendant included “producing TIFF images, OCR, bates labeling, and copying on CDs and DVDs.” Ultimately, the court granted in part and denied in part the request, basing the decision on prior case outcomes for the Third Circuit in Race Tires America, Inc. v. Hoosier Racing Tire Corp. and the Fourth Circuit in The Country Vintner of North Carolina, LLC v. E & J. Gallo Winery, Inc.

Despite the defendants’ argument that “all activities related to the production of ESI [electronically stored information ] should be taxable,” the court rejected approximately half of the costs sought, reasoning that “the process employed in the pre-digital era to produce documents in complex litigation” excluded those steps from taxation that the defendant sought to recover. Therefore, the defendant was allowed only the costs of nearly $30,000 for TIFF imaging and approximately $2,400 for copying to CDs and DVDs. The remaining requests were rejected.

So, what do you think? Should the costs related to digital copying be taxable by courts? Are awards in the production of ESI too generous? 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 Grants Motion to Compel Defendant to Produce Documents as Requested and Chronicle Approach – eDiscovery Case Law
 

In Home Instead, Inc. v. Florance, No. 8:12CV264, 2013 U.S. Dist. (D. Neb. Nov. 8, 2013), following a motion to compel discovery on behalf of the plaintiff, Nebraska Magistrate Judge Cheryl R. Zwart ordered the defendant to produce documents requested during discovery and required the defendant to produce a sworn affidavit chronicling the methods used in their search for production of the discovery documents.

During this dispute over a franchise agreement, the parties were ordered to meet for a discussion of the discovery matter but failed to resolve any issues.  The plaintiff alleged the documents were not produced due to the defendant’s destruction, deleting, selling, shredding, or otherwise discarding of the documents.  The plaintiff also alleged that their attempts at searching electronically for documents fell short of a good faith effort and was therefore inadequate.  According to testimony by both David and Michelle Florance, the defendants, there was not a thorough search of email accounts for responsive documents.  This “broad” search did not include reviewing client paper files, employee files, caregiver logs, or client care plans or service contracts. 

Additionally, the defendants were unable to explain what efforts their employees used to find information.  Furthermore, their electronic search merely consisted of looking for the words “Home Instead”, and they subsequently deleted any documents found.  The defendants did not retain a copy or forward the document to counsel.  Judge Zwart agreed with the plaintiff and felt they were entitled to a sworn affidavit, “not only to determine the extent of the defendants’ search for production of responsive discovery”, but to also assess the defendant’s culpability in failing to preserve evidence used in litigation.

As to the manner of production, the plaintiff alleged the defendants provided “one large PDF that contains no metadata, no indication of parent-document relationship, on no indication as to the beginning and end of each document.”  The motion requested Judge Zwart to compel the defendants to produce their discovery responses in compliance with the Federal Rules.

According to the parties’ Rule 26(f) report, any document maintained in electronic form during a party’s normal course of business will also be produced in electronic form as “searchable TIFF images with load files to allow images to be loaded into a document production database.”  Those documents not produced in electronic form in a party’s ordinary course of business and not scanned into electronic form prior to the date of production are allowed to be produced in the manner in which they are maintained.  In addition, Rule 34(b)(2)(e) of the FRCP states that a party “must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.”

The defendant’s deposition testimony showed that while the defendants located electronic documents, they did not produce them in an electronic format as required under their agreement with the Plaintiff or the federal rules.  They also failed to organize and label any documents that may have existed in their usual course of business, a requirement under the Federal Rules.  Judge Zwart agreed with the plaintiff, stating that the defendants “failed to organize and label [the documents] as required under the Federal Rules,” and granted the plaintiff’s motion to compel.

So, what do you think?  Should the motion to compel have been granted?   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.

LitigationWorld Quick Start Guide to Mastering eDiscovery – eDiscovery Best Practices

With the Super Bowl coming up in a few days, it seems appropriate to relay a story about the man for whom the trophy to the winning team is named…

During his first year with the Green Bay Packers, legendary coach Vince Lombardi pulled his team together for a stern lecture after his team lost five games in a row.  He scolded them saying “You forgot every basic fundamental about this game.  We are going to have to start all over again, from scratch!”  Then, he picked up a football and said “Gentlemen, the basics.  This is a football!”  To which one of his players responded “Hold on a minute, Coach!  You’re going too fast!”

Sometimes, it seems like we’re “going too fast” when trying to explain eDiscovery to attorneys.  At least it seems that there are a lot of attorneys that don’t understand the simplest basics.  Now, a brand new guide is hoping to help change that.  Earlier this month, TechnoLawyer published LitigationWorld Quick Start Guide to Mastering Ediscovery, written by Tom O’Connor, who is a nationally recognized consultant in legal technology (and past thought leader interviewee on this blog).

After illustrating just how big the knowledge gap can be, how a lack of eDiscovery knowledge can prove disastrous (via the opinion In re Fannie Mae Securities (D.C. Cir. Jan. 6, 2009)) and the ethical duties for lawyers to understand technology, Tom’s Quick Start Guide dives into the “This is a football!” basics of how computers work and why you should care.  It discusses the bits and bytes (literally) of how computers store data that is discoverable and how “deleted” electronically stored information (ESI) is actually often recoverable.  Remember Oliver North and the Iran-Contra affair?  His deleted email was recovered and he was convicted of perjury…way back in 1989.  These are not groundbreaking new concepts, but they are important if you’re going to be responsible for handling data in discovery.

With some basic technical concepts covered, the guide covers the evolution of eDiscovery with the December 2006 amendments to the Federal Rules of Civil Procedure (FRCP), similar amendments adopted by many of the states and, of course, the groundbreaking Zubulake v. UBS Warburg case.  To tie back to the computer fundamentals, Tom asks and answers an important question: “How can you apply current and future rules to ensure your clients preserve all potentially relevant ESI unless you know how it’s stored? You can’t so that’s why you need to understand the basic technological underpinnings of data storage.”

Tom then goes on to cover various forms of production and the advantages and disadvantages of each – his reference to TIFF images as “petrified” is the best adjective I’ve heard yet to describe them – and covers other basic (but important) concepts, such as collection, processing and load files.  He concludes by discussing the importance of learning to “speak geek” about storage technologies and sets the path for you to travel to “true eDiscovery mastery”.

The document is relatively short and sweet, at just 17 pages after the title page and is an easy read, yet contains numerous links to outside resources for those who want to dive deeper.  He references a number of resources and courses available from a variety of eDiscovery pioneers, including Ralph Losey, Craig Ball and Michael Arkfeld.  There is no shortage of resources in this guide for those who want to learn more about eDiscovery.

The free guide is available for download at TechnoLawyer here (you have to be a member of TechnoLawyer to get it, but membership is free, which also gives you access to numerous other resources available on the site).

As Tom notes via a quote from Craig Ball (from this very blog, no less), “Understanding information technology is a necessity for litigators. That’s where the evidence lives.”  As Tom notes, “We all must adapt to this new paradigm of working in the digital world.”  Let’s hope that adaptation occurs sooner rather than later.

So, what do you think?  Do you understand the basic technical concepts you need to as a lawyer?   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.

2013 eDiscovery Year in Review: eDiscovery Case Law, Part 4

As we noted on Thursday, Friday and yesterday, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to proportionality and the first half of the cases related to sanctions (yes, there were that many).  Today, here are the rest of the cases related to sanctions.

We grouped those cases into common subject themes and have been reviewing them over the previous three posts.  Today is the last post in the series.  Perhaps you missed some of these cases?  Now is your chance to catch up!

SANCTIONS

Of the 62 cases we covered this past year, over 40% of them (26 total cases) related to sanctions, either due to spoliation issues or inadequate or untimely productions, many of which were granted, but some were denied.  Oh, and, apparently, having your case dismissed isn’t the worst that can happen to you for spoliation of data.  Here are the remaining 13 cases:

Judge Rules Against Spoliation Sanctions when the Evidence Doesn’t Support the Case.  In Cottle-Banks v. Cox Commc’ns, Inc., California District Judge Gonzalo P. Curiel denied the plaintiff’s motion for spolation sanctions because the plaintiff was unable to show that deleted recordings of customer calls would have likely been relevant and supportive of her claim.

Spoliation of Data Can Get You Sent Up the River.  Sometimes, eDiscovery can literally be a fishing expedition. I got a kick out of Ralph Losey’s article on E-Discovery Law Today (Fishing Expedition Discovers Laptop Cast into Indian River) where the defendant employee in a RICO case in Simon Property Group, Inc. v. Lauria threw her laptop into a river. Needless to say, given the intentional spoliation of evidence, the court imposed struck all of the defenses raised by the defendant and scheduled the case for trial on the issue of damages.

Adverse Inference Sanction for Defendant who Failed to Stop Automatic Deletion.  Remember the adverse inference instructions in the Zubulake v. UBS Warburg and Apple v. Samsung cases? This case has characteristics of both of those. In Pillay v. Millard Refrigerated Servs., Inc., Illinois District Judge Joan H. Lefkow granted the plaintiff’s motion for an adverse inference jury instruction due to the defendant’s failure to stop automatic deletion of employee productivity tracking data used as a reason for terminating a disabled employee.

Appellate Court Upholds District Court Discretion for Determining the Strength of Adverse Inference Sanction.  In Flagg v. City of Detroit, the Sixth Circuit held that the district court did not abuse its discretion in issuing a permissive rather than mandatory adverse inference instruction for the defendant’s deletion of emails, noting that the district court has discretion in determining the strength of the inference to be applied.

eDiscovery Vendors Are Not Immune to eDiscovery Sanctions.  In Nuance Communications Inc. v. Abbyy Software House et al., California District Judge Jeffrey S. White refused Wednesday to dismiss Nuance Communications Inc.’s patent infringement suit against Lexmark International Inc. and Abbyy Software House, and awarded reimbursement of plaintiff’s attorneys’ fees and costs in excess of $130,000 as part of discovery abuse sanctions resulting from the late production of relevant documents from Abbyy.

Hard Drive Turned Over to Criminal Defendant – Eight Years Later.  If you think discovery violations by the other side can cause you problems, imagine being this guy. As reported by WRAL.com in Durham, North Carolina, the defense in State of North Carolina v. Raven S. Abaroa filed a Motion to Dismiss the Case for Discovery Violations after the state produced a forensic image of a hard drive (in the middle of trial) that had been locked away in the Durham Police Department for eight years.

When Lawyers Get Sued, They Have Preservation Obligations Too.  In Distefano v. Law Offices of Barbara H. Katsos, PC., New York Magistrate Judge A. Kathleen Tomlinson found that the defendant (an attorney who was being sued by the plaintiff she previously represented for breach of contract, negligence/legal malpractice, and breach of fiduciary duty/duty of care) had a duty to preserve information from a discarded computer and ordered a hearing for the defendant to address a number of questions to determine the potential relevance of the destroyed data and whether the defendant had a sufficiently culpable state of mind.

Plaintiff Receives Adverse Inference Sanction for Deleting Facebook Profile.  In Gatto v. United Air Lines, Inc., New Jersey Magistrate Judge Steven C. Mannion issued an adverse inference sanction against the plaintiff for failing to preserve data due to the fact that he either, deactivated his Facebook account and allowed the account to be automatically deleted after fourteen days, or that he deleted the account outright. Judge Mannion denied the defendant’s request for attorney’s fees and costs for “the time and effort it was forced to expend in an effort to obtain discovery”.

The Hammer Comes Down on Losing Plaintiff for Spoliation of Data.  Apparently, having your case dismissed isn’t the worst that can happen to you for egregious spoliation of data. You can also be ordered to pay the winning party over $200,000 in fees and costs for the case. In Taylor v. Mitre Corp., Virginia District Judge Liam O’Grady partially granted the prevailing defendant’s motion for fees and costs after the court dismissed the case due to the plaintiff’s spoliation of evidence.

Defendants Sanctioned, Sort Of, for Failure to Preserve Text Messages.  In Christou v. Beatport, LLC, Colorado District Judge R. Brooke Jackson ruled that the plaintiffs could introduce evidence at trial to show the defendants failure to preserve text messages after the key defendant’s iPhone was lost. However, the judge also ruled that the defendants could present “evidence in explanation…and argue that no adverse inference should be drawn”.

JP Morgan Chase Sanctioned for a Failure to Preserve Skill Codes.  In EEOC v. JP Morgan Chase Bank, District Judge Gregory L. Frost granted the EEOC’s motion for sanctions for spoliation of data, entitling the plaintiff to “a permissive adverse jury instruction related to the spoliation if this litigation proceeds to a jury trial”, and denied the defendant’s motion for summary judgment.

EEOC Sanctioned for Failing to Comply with Motion to Compel Production.  As noted previously in this blog, the Equal Employment Opportunity Commission (EEOC) was ordered to turn over social media information related to a class action case alleging sexual harassment and retaliation. Apparently, they were less than cooperative in complying with that order. In EEOC v. Original Honeybaked Ham Co. of Georgia, Colorado Magistrate Judge Michael E. Hegarty sanctioned the EEOC for failing to provide discovery of social media content.

Blind Reliance on Vendor for Discovery Results in Sanctions.  In Peerless Indus., Inc. v. Crimson AV, LLC, Illinois Magistrate Judge Susan E. Cox sanctioned the defendant for a “hands off approach” to discovery by relying on a vendor for conducting the discovery from a closely related non-party to the suit.

That’s our eDiscovery case review for 2013.  Let’s do it again next year!

So, what do you think?  Did you miss any of these?  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.