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Electronic Discovery

The Number of Pages (Documents) in Each Gigabyte Can Vary Widely: eDiscovery Throwback Thursdays

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

This post was originally published on July 31, 2012 – when eDiscovery Daily wasn’t even two years old yet.  It’s “so old (how old is it?)”, it references a blog post from the now defunct Applied Discovery blog.  We’ve even done an updated look at this topic with more file types about four years later.  Oh, and (as we are more focused on documents than pages for most of the EDRM life cycle as it’s the metric by which we evaluate processing to review), so it’s the documents per GB that tends to be more considered these days.

So, why is this important?  Not only for estimation purposes for review, but also for considering processing throughput.  If you have two 40 GB (or so) PST container files and one file has twice the number of documents as the other, the one with more documents will take considerably longer to process. It’s getting to a point where the document per hour throughput is becoming more important than the GB per hour, as that can vary widely depending on the number of documents per GB.  Today, we’re seeing processing throughput speeds as high as 1 million documents per hour with solutions like (shameless plug warning!) our CloudNine Explore platform.  This is why Early Data Assessment tools have become more important as they can provide that document count quickly that lead to more accurate estimates.  Regardless, the exercise below illustrates just how widely the number of pages (or documents) can vary within a single GB.  Enjoy!

A long time ago, we talked about how the average number of pages in each gigabyte is approximately 50,000 to 75,000 pages and that each gigabyte effectively culled out can save $18,750 in review costs.  But, did you know just how widely the number of pages (or documents) per gigabyte can vary?  The “how many pages” question came up a lot back then and I’ve seen a variety of answers.  The aforementioned Applied Discovery blog post provided some perspective in 2012 based on the types of files contained within the gigabyte, as follows:

“For example, e-mail files typically average 100,099 pages per gigabyte, while Microsoft Word files typically average 64,782 pages per gigabyte. Text files, on average, consist of a whopping 677,963 pages per gigabyte. At the opposite end of the spectrum, the average gigabyte of images contains 15,477 pages; the average gigabyte of PowerPoint slides typically includes 17,552 pages.”

Of course, each GB of data is rarely just one type of file.  Many emails include attachments, which can be in any of a number of different file formats.  Collections of files from hard drives may include Word, Excel, PowerPoint, Adobe PDF and other file formats.  So, estimating page (or document) counts with any degree of precision is somewhat difficult.

In fact, the same exact content ported into different applications can be a different size in each file, due to the overhead required by each application.  To illustrate this, I decided to conduct a little (admittedly unscientific) study using our one-page blog post (also from July 2012) about the Apple/Samsung litigation (the first of many as it turned out, as that litigation dragged on for years).  I decided to put the content from that page into several different file formats to illustrate how much the size can vary, even when the content is essentially the same.  Here are the results:

  • Text File Format (TXT): Created by performing a “Save As” on the web page for the blog post to text – 10 KB;
  • HyperText Markup Language (HTML): Created by performing a “Save As” on the web page for the blog post to HTML – 36 KB, over 3.5 times larger than the text file;
  • Microsoft Excel 2010 Format (XLSX): Created by copying the contents of the blog post and pasting it into a blank Excel workbook – 128 KB, nearly 13 times larger than the text file;
  • Microsoft Word 2010 Format (DOCX): Created by copying the contents of the blog post and pasting it into a blank Word document – 162 KB, over 16 times larger than the text file;
  • Adobe PDF Format (PDF): Created by printing the blog post to PDF file using the CutePDF printer driver – 211 KB, over 21 times larger than the text file;
  • Microsoft Outlook 2010 Message Format (MSG): Created by copying the contents of the blog post and pasting it into a blank Outlook message, then sending that message to myself, then saving the message out to my hard drive – 221 KB, over 22 times larger than the text file.

The Outlook example back then was probably the least representative of a typical email – most emails don’t have several embedded graphics in them (with the exception of signature logos) – and most are typically much shorter than yesterday’s blog post (which also included the side text on the page as I copied that too).  Still, the example hopefully illustrates that a “page”, even with the same exact content, will be different sizes in different applications.  Data size will enable you to provide a “ballpark” estimate for processing and review at best, but, to provide a more definitive estimate, you need a document count today to get there.  Early data assessment has become key to better estimates of scope and time frame for delivery than ever before.

So, what do you think?  Was this example useful or highly flawed?  Or both?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Dueling Sanctions Motions from Both Plaintiffs and Defendants: eDiscovery Case Law

In Cox v. Swift Transportation Co. of Arizona, LLC, No. 18-CV-117-CVE-JFJ (N.D. Okla. Aug. 6, 2019), Oklahoma District Judge Jodi F. Jayne denied both the plaintiffs’ and defendants’ motion for sanctions for spoliation of evidence, finding no intent to deprive by either side to justify a sanction of either an adverse inference jury instruction or directed verdict (for the plaintiffs)/dismissal (for the defendants).

Case Background

In this case involving an accident between two tractor/trailers in which Plaintiff Adam Cox suffered severe injuries, both parties failed to preserve electronic data:

  • Defendant Swift Transportation Company (“Swift”) failed to preserve: (1) electronic control module (“ECM”) data of the Swift tractor/trailer driven by Defendant Sai Wai (“Wai”), which would have provided information regarding the speed of Wai’s vehicle at the time of the accident and any “Critical Event Report” prompted by hard braking or a sudden drastic change in speed; (2) messages delivered from Wai to Swift via the Qualcomm mobile communication system; and (3) Wai’s electronic driver “E-logs” for the 1.5 hours immediately prior to the accident, which were also stored electronically on the Qualcomm system.
  • Plaintiffs Adam and Kimberly Cox failed to preserve: (1) ECM data from Cox’s vehicle, which Defendants argue would have (a) provided information regarding the speed of Cox’s vehicle at the time of the accident, and (b) potentially bolstered its expert’s opinion that Cox failed to brake; and (2) Cox’s paper driver logs, which were on the dashboard at the time of the accident (“Logs”).

The plaintiffs filed a Motion for Sanctions Pursuant to Federal Rule of Civil Procedure 37 for Defendant Swift’s Spoliation of Evidence, requesting two alternative sanctions under Federal Rule of Civil Procedure 37(e): (1) a directed verdict on the issue of liability; or (2) an adverse inference jury instruction.  The defendants’ filed a Motion for Sanctions for Plaintiffs’ Spoliation of Evidence, requesting either the dismissal of the plaintiffs’ case or an adverse inference instruction regarding the spoliated evidence.

Judge’s Ruling

In considering the plaintiffs’ request for sanctions for failure to preserve the ECM Data/Qualcomm Messages, Judge Jayne stated: “After consideration of the record and the parties’ oral argument, the Court finds that Swift did not “act[] with the intent to deprive [Plaintiffs] of the information’s use in the litigation” and therefore declines to impose either of the severe sanctions requested by Plaintiffs…Swift’s stated reason for failing to download the ECM data or immediately place a litigation hold on evidence is adequately supported by [investigating Officer Jason] McCarthy’s investigation, conclusions, and report, and the Court finds no inference or indication that Swift engaged in bad faith or intentional conduct aimed at depriving Plaintiffs of this evidence.”

Citing defendant Swift’s explanation for failure to preserve 1.5 hours of E-Logs as caused by a failure to account for a Time Zone difference between Mountain and Central Time, Judge Jayne stated: “The Court finds this explanation plausible and consistent with the actual missing data. This explanation, at most, shows a negligent failure to retain by Swift. As explained above, negligent failures to retain evidence cannot support Plaintiffs’ requested sanctions in this case, and Plaintiffs’ motion for sanctions based on failure to preserve the missing E-logs is also denied.”

With regard to the defendants’ motion for sanctions, Judge Jayne stated “the Court easily concludes that Plaintiffs did not intentionally deprive Defendants of evidence or engage in any bad-faith conduct by failing to preserve the ECM data or the Logs. The engine, including the ECM device, was hauled away as debris from the scene of the accident by Environmental Remediation Services, Inc., (“ERS”), held for thirty days, and then sent to the scrap yard. Cox was in the hospital for five weeks following the accident. It strains reason to find that Plaintiffs acted with intent to deprive Defendants of this evidence when, at most, Plaintiffs failed to prevent another entity, ERS, from scrapping the engine pursuant to ERS’s own standard retention policy.”  She also characterized the plaintiffs’ explanation that the Logs on the dashboard were destroyed in the accident as “plausible” and stated: “Accordingly, Defendants’ requested sanctions of dismissal or an adverse inference instruction are denied.”

So, what do you think?  Should either party have attempted to obtain less severe sanctions instead?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Houston Legal Technology Showcase and Conference is Less Than a Month Away: eDiscovery Best Practices

It’s officially a tradition now!  The Third Annual Women in eDiscovery (WiE) Houston Chapter, Legal Technology Showcase and Conference will be held on Thursday, September 26th in downtown Houston!

WiE Houston, once again in partnership with South Texas College of Law and the Association of Certified E-Discovery Specialists (ACEDS), will be hosting the conference on that day.  The one-day technology showcase will bring together legal thought leadership, innovative technology providers, practitioners, legal support staff and law school students in one venue to network and collaborate on current legal industry trends and innovative technology products.

Thanks to South Texas College of Law, ACEDS, conference sponsors and technology exhibitors, the event is free(!) to attend and open to all professionals within the legal industry including attorneys, litigation support and legal operations professionals, paralegals, legal IT staff, court reporters, consultants, recruiters and vendors.

The conference will feature several educational sessions (CLE credit pending) led by industry experts and thought leaders along with a full day of technology exhibits from leading legal technology providers. The agenda and speakers will be updated as they are finalized. The event agenda includes a continental breakfast, welcome keynote, 3 educational sessions, lunch, all day exhibitions, and a post-event happy hour.  The current agenda and list of speakers for the conference are available here.

Attendees will also once again have the opportunity to enter in a drawing to win a CEDS scholarship courtesy of ACEDS.  CloudNine is once again a Sponsor for the event (as well as an Exhibitor, so you can come learn about us too).

The conference runs from 8:30am to 5:15pm, with a networking happy hour from 5:15pm to 7:15pm.  Both events are at South Texas College of Law in downtown Houston.  If you’re in Houston (or could be on that day), click here to register for the event.  Based on turnout the first two years, it’s going to be BIG, so register early to save your spot!

So, what do you think?  Are you going to be in Houston on September 26th?  If so, register to enjoy free eDiscovery education and a chance to network with your colleagues!  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Is eDiscovery “Too Practical” to Offer as Part of Law School Curriculums?: eDiscovery Trends

We’ve certainly noted before how slow law schools are to provide eDiscovery education.  But, are they slow to push for it because eDiscovery is “too practical”?  At least one law school dean suggests that might be the case.

In Legaltech® News (‘Too Practical’? Why Some Law Schools Don’t Offer E-Discovery Education, by Victoria Hudgins), the author notes that “most U.S. law schools aren’t providing e-discovery courses to prepare new lawyers for the potential work of examining and preserving electronic data.”

“I think part of the reason is they may not see the importance of eDiscovery or see it as very—almost ironically—too practical,” said Drexel University Thomas R. Kline School of Law Dean Daniel Filler.

While some law schools may view eDiscovery as a practical skill they can learn later on the job, Drexel takes a different approach by offering its students a standalone eDiscovery course.

“I think a big part of 21st century legal practice is making sure that lawyers are sophisticated enough with technology that they remain in control [and make] sure they really protect their clients,” Filler said. “There is a risk with this move toward technology that they will not understand it well enough and refer to nonlawyers.”

But not all law schools see the need for dedicated eDiscovery education. While Concord Law School associate dean of faculty and professor Shaun Jamison said his law school doesn’t offer an eDiscovery course, he noted that eDiscovery is intertwined into other classes. “Having the [e-discovery] basics would be enough to understand what the issues are,” he said.  A link to Concord’s E-discovery, Privacy, and Cybersecurity Law blog, with links to technology related programs can be found here.

Until eDiscovery “becomes more common across legal practices”, Jamison doesn’t see more law schools implementing eDiscovery-specific courses.

Hmmm…that’s an interesting take.  How much more common does it have to become for law schools to take notice?  It’s a standard part of litigation and becoming more common in compliance and investigations too.  But, I digress…

Andrea D’Ambra, who teaches an eDiscovery course at Temple University’s Beasley School of Law and William & Mary Law School while leading Norton Rose Fulbright’s U.S. e-discovery and information governance practice, argued that basic eDiscovery knowledge is essential for litigators as electronic information grows in volume and complexity.

“We are really dealing with text messages, social media pages, emails and Slack and all these methods of communication that are really prevalent in the business world and are not necessarily easy to preserve and collect to [show] to opposing parties.”

While D’Ambra noted that name-dropping an eDiscovery course won’t get a law student an immediate job, she said it will likely get them noticed on the job.

“I think it’s undervalued when you are in the interview process but I will say I have countless students that have written to me after they get into their law firm and they say they were immediately useful to the partners.”

Sadly, most law schools don’t have an eDiscovery course, last I checked.  For every Georgetown, University of Florida and Duke University that have a program for eDiscovery, there are dozens (if not hundreds) of law schools that don’t even have any program (not even an extracurricular program), much less a formal eDiscovery course.

So, what do you think?  Will most law schools ever embrace eDiscovery best practices as a standard curriculum course?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Here’s an eDiscovery Buyers Guide Where You Can Actually See Videos of the Products: eDiscovery Trends

Last year, Brett Burney of Burney Consultants and Chelsey Lambert of Lex Tech Review created the 2018 eDiscovery Buyers Guide to provide education about the alternatives to help solo to medium sized firms select a solution that’s right for them.  Now, they are back with the 2019 eDiscovery Buyers Guide, which is free once again!  And, this one not only has a write-up about each of the reviewed products, it also has a video review of them too!

This year’s Buyer’s Guide is contained in a comprehensive (but easy to read) 119 page PDF document.  As noted in the Introduction, Brett and Chelsey had two goals in creating the first eDiscovery Buyers Guide:

  1. First, we wanted to provide a literal “Buyers Guide” so that lawyers could avoid the manual and inefficient processes that typically plague litigation matters today.
  2. Second, you could refer to the eDiscovery Buyers Guide to learn about products that might be helpful to your clients, or gain a better idea of the products being used by opposing counsel.

Evidently, while the first Buyers Guide was well received for its comprehensive written reviews, its readers wanted more.  So, this year they have provided a brief video review of each product as well so you can see them in action.  Clever idea!

Once again, the guide includes reviews for products in several categories, including eDiscovery Research and Case Law (with a review of eDiscovery Assistant, our go-to source for Case Law opinions), Case Management and Chronology, eDiscovery Solutions (which is by far the largest section – after all, it is an eDiscovery Buyers Guide), Audio eDiscovery and Tech to Watch.  As before, each review includes a “Why You Should Consider” the product section that sums up several key benefits of the offering and succinctly describes differentiation points.

CloudNine is once again included in the guide with Brett’s review of our CloudNine Concordance® product, which includes a snapshot of “recent developments and updates”, including our upcoming exciting new document viewer in the product.  And, as before, the Buyer’s Guide also includes several articles from key thought leaders in the industry.  And, once again, they were also nice enough to include an article from me – this time, regarding one F-A-C-T to keep in mind when selecting eDiscovery software providers.  Read it and you may look at the EDRM model differently!

Hey, this post should count for two since I wrote that article!  Maybe I can take Monday off?  Hmmm… ;o)

Regardless, as I mentioned, you can download the guide – for free! – here.

So, what do you think?  Do you have an eDiscovery solution in house?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Thursday’s ILTACON 2019 Sessions: eDiscovery Trends

As noted yesterday, Tuesday and Monday, the International Legal Technology Association (ILTA) annual educational conference of 2019 (otherwise known as ILTACON) is happening this week and eDiscovery Daily is once again covering the show and, this year, CloudNine is exhibiting at the show and participating in a major way.  Today’s the last day to check out the show at the Walt Disney World Swan and Dolphin Resort in sunny Orlando area with a number of sessions available and as many as 191 exhibitors providing information on their products and services.

CloudNine will be exhibiting again at booth #624 and we have several exciting new features and enhancements to showcase at this year’s show (that we announced last week here).

Sessions of interest in the main conference tracks today – including one that I’m moderating (!) include (all times ET):

9:00 AM – 10:00 AM:

10 Litigation Support Tips in 60 Minutes: David Letterman had his Top 10 lists nightly; here at ILTA we have ours annually.  Meant for novices and experts, come learn 10 tips for effective and efficient litigation support practice.

Takeaways:

  • 10 tips for efficient/effective litigation support practice
  • A handout of the tips presented in the session

Speakers Include: Albert Chen, eDiscovery Services Client Solutions Manager Holland & Knight LLP; Lora Ramsey, Litigation Support Manager Arnall Golden Gregory LLP; Ann Halkett, Litigation Support Manager Alexander, Holburn, Beaudin + Lang LLP; Joy Holley, Director of Practice Support Bryan Cave Leighton Paisner LLP.

Impact of Advanced Legal Research Tools: Advances in AI-assisted legal research have been dramatic over the past few years and there are many new players in the market.  This session will show how a handful of these new and exciting AI research tools are being used by law firms to enhance litigation decision-making, reduce research risk, aid competitive intelligence, and more.

Takeaways:

  • Raising attorney awareness of these tools, strategies for driving attorney adoption, strategies for securing firm buy-in
  • Technologists will gain understanding of how these tools are used so they can better support, train, and drive user adoption

Speakers Include: Meredith L. Williams-Range, Chief Knowledge & Client Value Officer Shearman & Sterling, LLP; Scott B Reents, Lead Attorney, Data Analytics and E-Discovery Cravath, Swaine & Moore LLP; Cliff Nichols, Senior Counsel Day Pitney LLP.

11:30 AM – 12:30 PM:

Choosing a Predictive Coding Approach – “Predictive Coding For Dummies”: Gain a full understanding analytic jargon, acronyms [TAR, CAL, SPL, SAL?], learn the pros and cons of each approach, and collect a few tips for selling it to case teams, clients, and opposing counsel.  After that, it’s up to you!

Takeaways:

  • Learn the difference between various predictive coding technologies
  • Learn how to sell the technologies to relevant parties

Speakers include: Doug Austin, Vice President of Products/Services CloudNine; Doug Matthews, Partner Vorys, Sater, Seymour and Pease LLP; Catherine A. Casey, Chief Innovation Officer DISCO; Lia Majid, CEO and Founder, Acorn Legal Solutions; Julian Ackert, Managing Director iDiscovery Solutions, Inc.

2:00 PM – 3:00 PM:

Data Privacy: The Anniversary of GDPR and the Shape of Things to Come: In honor of the one year anniversary of the implementation of GDPR, let’s explore where we are today.  Learn what impact this regulation has had on our organizations and the unintended consequences.  If you are in an organization where GDPR was treated simply as a box to check off as being completed, or you are not in compliance, come to this session and learn how to create a cultural shift in how data and privacy are handled.  What are the lessons learned that we can carry forward for any new regulation?

Takeaways:

  • What can be forgotten? Under what circumstances must data be kept?
  • Learn what works and what doesn’t from peers
  • Implementing processes for managing requests
  • What tools are available that can be used to help with these requests

Speakers include: Karen Allen, Manager of Information Governance Technology Morgan, Lewis & Bockius, L.L.P.; Joshua Lenon, Lawyer in Residence Clio; Richard Hogg, Global Information Governance Director White & Case LLP; Terri Garland, Vice President & Sr. Loss Prevention Counsel Attorneys’ Liability Assurance Society, Inc.

So, what do you think?  Did you attend ILTACON this year?  If so, what did you think of the conference?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Cases I Will Be Covering Today During Litigation Support Day: eDiscovery Case Law

It’s a rare two-post day for us at eDiscovery Daily.  As we always do, we’re covering the notable sessions to check out at ILTACON today and that post is here.  But I’m also speaking at Litigation Support Day today in Session One (9:00 AM – 10:30 AM) on Legal Trends, discussing the most interesting case law decisions for 2019 so far with my good friend, David Horrigan!  If you’re attending that session, no need to take copious notes – the cases that we plan to discuss are also referenced and linked below so that you can check them out.  Hope to see y’all there!

Social Media Discovery and Judicial “Friending”: Here are a couple of cases that have interesting ramifications on the social media front.  Are pictures where you are “tagged” discoverable?  Should judges accept “friend” requests from litigants when a motion is pending?  See below.

  • In Vasquez-Santos v. Mathew, 8210NIndex 158793/13 (N.Y. App. Div. Jan. 24, 2019), the New York Appellate Division, First Department panel “unanimously reversed” an order by the Supreme Court, New York County last June that denied the defendant’s motion to compel access by a third-party data mining company to plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of plaintiff engaging in physical activities and granted the defendant’s motion.
  • In the case In Re the Paternity of B.J.M., Appeal No. 2017AP2132 (Wis. App. Feb. 20, 2019), the Court of Appeals of Wisconsin, concluding that “the circuit court’s undisclosed ESM connection with a current litigant in this case {by accepting a Facebook “friend” request from the litigant} created a great risk of actual bias, resulting in the appearance of partiality”, reversed and remanded the case for further proceedings before a different judge.

Fifth Amendment and Passwords: Are mobile device passwords protected by the Fifth Amendment?  See below.

  • In Commonwealth v. Jones, SJC-12564 (Mass. Mar. 6, 2019), the Supreme Judicial Court of Massachusetts reversed a lower court judge’s denial of the Commonwealth’s renewed Gelfgatt motion (where the act of entering the password would not amount to self-incrimination because the defendant’s knowledge of the password was already known to the Commonwealth, and was therefore a “foregone conclusion” under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights), and the court remanded the case to the Superior Court for entry of an order compelling the defendant to enter the password into the cell phone at issue in the case.

Discovery vs. Dismissal Motions: Should discovery be stayed until a motion to dismiss is decided?  See below.

Case Strategy vs. Sanctions: Would a party actually object to having a claim against it dismissed to keep alive the possibility of sanctions against the opposing party?  See below.

Mobile Device Discovery and Sanctions: How often are we seeing cases involving spoliation of mobile device data?  And, how difficult is it to obtain significant sanctions in those cases?  See below.

  • In DriveTime Car Sales Company, LLC v. Pettigrew, No.: 2:17-cv-371 (S.D. Ohio Apr. 18, 2019), Judge George C. Smith granted in part and denied in part the plaintiff’s motion for spoliation sanctions against defendant Pauley Motor, denying the plaintiff’s request for an adverse inference sanction by ruling that “DriveTime has not sufficiently demonstrated that Pauley Motor acted with the requisite intent” when Bruce Pauley failed to take reasonable steps to preserve text messages when he switched to a different phone. Judge Smith did “order curative measures under Rule 37(e)(1)”, allowing the plaintiff to “introduce evidence at trial, if it wishes, of the litigation hold letter and Pauley Motor’s subsequent failure to preserve the text messages.”
  • In NuVasive, Inc. v. Kormanis, No. 1:18CV282 (M.D.N.C. Mar. 13, 2019), North Carolina Magistrate Judge L. Patrick Auld recommended that, “because the record supports but does not compel a ‘finding that [Defendant Kormanis] acted with the intent to deprive [Plaintiff] of the [lost text messages’] use in the litigation, the Court submit that issue to the ‘jury, [with] the [C]ourt’s instruction[s] mak[ing] clear that the jury may infer from the loss of the [text messages] that [they were] unfavorable to [Defendant Kormanis] only if the jury first finds that [he] acted with the intent to deprive [Plaintiff] of the[ir] use in the litigation’”.
  • In Paisley Park Enter., Inc. v. Boxill, No. 17-cv-1212 (WMW/TNL), (D. Minn. Mar. 5, 2019), Minnesota Magistrate Judge Tony N. Leung granted in part the plaintiffs’ Motion for Sanctions Due to Spoliation of Evidence, ordering the Rogue Music Alliance (“RMA”) Defendants to pay reasonable expenses, including attorney’s fees and costs, that Plaintiffs incurred as a result of the RMA Defendants’ “misconduct”, and also ordered the RMA Defendants to pay into the Court a fine of $10,000, but chose to defer consideration of adverse inference instruction sanctions to a later date, closer to trial.
  • In Legaltech® News, David Horrigan discusses the case Commonwealth v. Fowler, a criminal prosecution, and a related civil action, Little v. Fowler, that stemmed from sexual assault allegations against the actor Kevin Spacey (whose legal name is Kevin Spacey Fowler) and turned on the availability of a mobile device.

Bonus Case! In Marshall v. Brown’s IA, LLC, No. 2588 EDA 2017 (Pa. Super. Mar. 27, 2019), the Superior Court of Pennsylvania, ruling that the trial court “abused its discretion in refusing the charge” of an adverse inference sanction against the defendant for failing to preserve several hours of video related to a slip and fall accident, vacated the judgment issued by the jury within the trial court for the defendant and remanded the case for a new trial.

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

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

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Tuesday’s ILTACON 2019 Sessions: eDiscovery Trends

As noted yesterday, the International Legal Technology Association (ILTA) annual educational conference of 2019 (otherwise known as ILTACON) is happening this week and eDiscovery Daily will once again be covering the show and, this year, CloudNine will exhibiting at the show and participating in a major way.  There’s still time to check out the show at the Walt Disney World Swan and Dolphin Resort in sunny Orlando area with a number of sessions available and as many as 191 exhibitors providing information on their products and services.

CloudNine will be exhibiting again at booth #624 and we have several exciting new features and enhancements to showcase at this year’s show (that we announced last week here).

Sessions of interest in the main conference tracks today include (all times ET):

1:30 PM – 2:30 PM:

Data Privacy – Everyone’s Getting In On It – Privacy From Europe to California and Beyond: HIPAA, DFS, GDPR…data privacy regulations keep evolving.  The implementation of the California Consumer Privacy Act (CCPA) is next on the horizon.  Other states and the federal government are also considering similar laws.

How will your existing procedures need to be revised in order to comply with the latest regulations?  What lessons learned from other data privacy requirements can be applied as you navigate the ever changing landscape?

Takeaways:

  • What do I have to do to prepare for the future?
  • What has been effective in the past that will help in the future?

Speakers include: Lauren Doerries, Information Governance Business Process Manager Morgan, Lewis & Bockius, L.L.P.; Tsutomu Johnson, CEO, PB Lab Parsons Behle & Latimer; Michelle Merola, Partner Hodgson Russ LLP.

3:30 PM – 5:00 PM:

Information Governance Roundtable – Security Edition: Join Information Governance professionals for a round table discussion on Information Governance strategies and trends.  The small group question and discussion format encourages participation from all attendees to take detailed dives into IG strategies.

Takeaways:

  • Identify trends fellow Information Governance professionals encounter
  • Share and learn strategies for tackling Information Governance goals

Speakers include: Al Pica, Senior Manager of Information Governance Ropes & Gray; Kathleen Jimenez, Information Governance Manager White & Case LLP; Jessica Marlette, Information Governance Counsel White & Case LLP.

Machine Learning and AI in Action (AI Series, Session 2): Demystify Machine Learning and AI by walking through a real-world example of a working model.  We will walk through all the steps – from prototyping to production – of developing a machine learning algorithms. We’ll look at data cleaning, model building/evaluation, and deployment. Explore how you take your new model and apply it/integrate it into applications.

Takeaways:

  • Learn how to bring solutions to market fast
  • Learn what it takes to build a successful machine learning model
  • Learn the importance of data quality

Speakers include: Svetlana Grigoryeva, Manager, Application Development Shearman & Sterling, LLP; Shawn Hainsworth, Senior Architect/Developer & Programmer Cooley LLP; Dan Harsell, Senior VP, Technology Intapp.

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

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

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Welcome to ILTACON 2019!: eDiscovery Trends

The International Legal Technology Association (ILTA) annual educational conference of 2019 (known as ILTACON) kicked off yesterday with several networking events, and begins in earnest today with the first day of sessions.  As always, eDiscovery Daily will once again be covering the show.  Over the next four 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.

CloudNine will be exhibiting again at booth #624 and we have several exciting new features and enhancements to showcase at this year’s show (that we announced last week here).

If you’re in the Orlando area, come check out the show at the Walt Disney World Swan and Dolphin Resort – there are a number of sessions available and as many as 191 exhibitors providing information on their products and services.  Sessions of interest in the main conference tracks today include (all times ET):

11:30 AM – 12:30 PM:

Outsource the App, But You Can’t Outsource Your Responsibility: As cloud-based solutions gain momentum with both law firms and corporate law departments, and Software-as-a-Service (SaaS) is becoming more prevalent for software delivery and licensing model, gone are the ways of heavy in-house IT development for software.  As the industry moves toward outsourcing these cloud-based, SaaS-based solutions, one can’t help but wonder who ultimately has the responsibility of making sure everything is “ok”?  With news of data breaches happening more often than we want to hear, who ultimately has responsibility for data privacy and security? Who is ultimately responsible for making sure data preservation and collection is conducted with the utmost quality and precision?  Lastly, are there advantages or disadvantages from both technology and process perspective that cloud-based and SaaS-based solution edges out the traditional install-on-our-server mentality?

Takeaways:

  • Learn how the move of applications to the cloud changed collection and preservation

Speakers include: Tim Hood, Senior Advisor Redgrave LLP; Brent Holmes, eDiscovery Program Director & Head of Legal Technology Siemens Corporation; Canaan Himmelbaum, Global Director Consilio.

2:00 PM – 3:00 PM:

Blockchain, Cryptocurrency & Smart Contracts; Disputes & Investigations Best Practices: As the viability and range of blockchain and cryptocurrency solutions become more evident, and as adoption ramps up, business and legal professionals should begin thinking about their potential uses, as well as how to effectively manage related disputes, investigations, and litigation. Providing definitions for innovations like blockchain, Smart Contracts and cryptocurrencies, this session will review past and present cases related to this emergent technology. Likewise, we’ll discuss current applications and their challenges and opportunities. From understanding the judicial system to dealing with discovery requests, we’ll explain investigative techniques and capabilities of cryptocurrencies and why this is not the normal investigation/discovery process.

Speakers include: Steven McNew, Senior Managing Director, Blockchain, Information Governance, Privacy & Security FTI Consulting.

3:30 PM – 5:00 PM:

Pitch Your Litigation Support Challenges: Submit your most difficult Litigation Support Challenges to our panel of experts and they’ll resolve them magically before your very eyes utilizing years of expertise and problem-solving skills.  At least they’ll try.  Either way, it should be entertaining and informative.

Speakers include: Thomas Morrissey, Sr. Director – Legal Ops & eDiscovery Purdue Pharma L.P.; Stephen Dooley, Acting Director of Electronic Discovery and Litigation Support Sullivan & Cromwell LLP; Duane Lites, Director, Litigation Support Jackson Walker L.L.P.; Chris Haley, Director of Legal Technology Troutman Sanders LLP; Catherine McPherson, Litigation Management Consultant Bartlit Beck LLP.

And, of course, you don’t want to miss the Exhibit Hall Opening Reception – A Whole New World of Possibilities-A Journey through Classic TV – from 7:00 PM – 9:00 PM ET.  Come join us at booth #624 and see what Classic TV show we decided to commemorate!

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

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

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

What is the Future of the Legal Technology Conference?, Part Three

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

Tom’s overview is split into three parts, so we’ll cover each part separately.  Part one was Monday, part two was Wednesday, here is the third and final part.

My Observations Regarding Legal Tech Conferences

Are we left, then, with no true educational conferences?  Not entirely, as the Georgetown Law Advanced EDiscovery Institute offers a great value of 2 days of intense educational sessions every fall, albeit in one narrow field only and Prex makes a similar strong educational showing . But by and large, bar associations have taken up a large part of the slack, mostly at local or regional level.

The leader in that category is the ABA TechShow. Now in it’s 34th year and held in Chicago every year since 1989, TechShow has always had an emphasis on assisting attendees learn technology skills. In the same category are state and local bar association shows such as the Louisiana Bar Solo and Small Firm Conference, the Wisconsin Bar Solo and Small Firm Conference or the Illinois Bar Solo & Small Firm Conference, all of which offer a similar focus on skills necessary for the competent practice of law.

There is, however, another category of conference which has become increasingly predominant as traditional conferences fall off.  These are user conferences, which fall into two distinct types, general user group meetings and product specific user meetings.

The undisputed leader of the first category is ILTACON, the annual technology conference for members of the International Legal Technology Association. This 4-day conference (which is also open to non-members) once concentrated on large firms but now brings together legal technologists from small to large sized law firms, corporate and government law departments, academia and the G100 firms. Although it too has begun to drift more and more into the area of vendor speakers (this year’s conference has a Litigation Support Day with three organizers, one of whom is from legal technology giant Relativity and is also serving as Moderator for the day’s activities), I think it is no stretch to say that the 140 + sessions at this conference offer a deep dive into every facet of legal technology that is unparalleled in the conference world.

Other user groups like Sedona, CLOC, LMA and most especially the unfortunately often overlooked AALL, offer educational conferences primarily to members and remain true to the educational paradigm, while the area of user groups for specific products has both exploded and expanded to provide general educational sessions beyond the scope of just their own product information. Chief among these are the Clio Cloud Conference, Infusion by Exterro and the long standing Ipro Tech Show.  But, the one that stands head and shoulders above the others is Relativity Fest.

Offered every year in Chicago, Relativity Fest has thousands of attendees from 29 countries, participating in 17 workshops and over 180 sessions with more than 300 speakers.  The content covers everything from hands on training and certification in the Relativity product line but also numerous sessions on basic legal subjects with 19 subject qualifying for CLE credit at the 2018 conference. Much of the credit for that latter category goes to David Horrigan, Relativity Discovery Counsel and Legal Education Director, who does yeoman’s work overseeing the non-product specific sessions including an annual Judges Panels that is on my must attend list every year.

So, are big tech shows dead?  Well, I’d say as consistent sources of educational content, they are trending down.  Certainly, they are still a factor but exhibitor attendance is down and as we saw in New York this year, more vendors will focus on offsite activities in which they can completely control content. The trend seems to be for those with products or services to sell attending and networking but not exhibiting. The shows more specifically focused on users, specific practice areas or even user groups will continue to grow. I also predict that live streaming for both speakers and attendees, such as the U of Florida has done for several years now, will grow in prominence.

The big struggle will be to get the decisions about what is important to develop in the hands of the consumers: that is the attendees.  In his column noted in the previous part, Bob Ambrogi referenced legal scholar and economist Gillian K. Hadfield who argues for how to reinvent law for a global economy in her book, Rules for A Flat World.

Her recommendations? First, “Don’t leave it to the lawyers.” She recommends rather that the conversation needs to include those who are “paying the price of inadequate, complex, and costly legal infrastructure.”

In other words, let’s get the clients involved in deciding what is most important at a tech show. The product users, the people who argue the motions (there are some litigators still left out there, right?), the folks who process the data and review the documents.  They vote with their wallets and attendance figures will tell us who the winners are.

Is anyone listening?

So, what do you think?  Do you attend legal tech conferences and do you think attendance has proven valuable to you over the years?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.