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Electronic Discovery

The Ubiquitous Apple Samsung Case and “Patentgate” – eDiscovery Case Law

When something gets the “gate” suffix added to it, that’s not a good thing.

It’s hard to believe that a case can get more intense than when a billion dollar verdict is awarded (later reduced to a measly $599 million), but the Apple v. Samsung case seems to only be getting more intense, due to the disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate”.

Here is a summary of events as they are described in California Magistrate Judge Paul S. Grewal’s Order from October 2 regarding Apple’s motion for sanctions (which Nokia joined):

“During the massive fact discovery in this case between August 2011 and March 2012, Apple produced copies of a number of its patent license agreements, including a June 2011 license between Apple and Nokia. Apple marked the Apple-Nokia license as “Highly Confidential —Attorney Eyes’ Only” as permitted by the court’s protective order. Apple also produced and marked as “Highly Confidential —Attorney Eyes’ Only” similar patent license agreements it has reached with Ericsson, Sharp, and Philips.”

“As fact discovery transitioned to expert discovery, on March 24, 2012, Samsung’s outside counsel sent Samsung a draft expert report by Dr. David J. Teece. Dr. Teece’s report concerned damages to be awarded for Apple’s alleged infringement of Samsung’s asserted declared-essential patents. Because it addressed highly confidential, attorneys’ eyes only information, the report should have been fully redacted of that information before it was sent. However, intentionally or inadvertently, it was not. The report as distributed included key terms of each of the four Apple license agreements.”

“Samsung’s outside counsel [Quinn Emanuel Urquhart & Sullivan LLP] posted the report on an FTP site that was accessible by Samsung personnel. An email providing instructions to access the FTP site was addressed to the regular client distribution list used by counsel to provide Samsung personnel updates regarding this case. The information was then sent, over several different occasions, to over fifty Samsung employees, including high-ranking licensing executives. Specifically, on at least four occasions between March 24, 2012 and December 21, 2012, Samsung’s outside counsel emailed a copy of some version of the report to Samsung employees, as well as various counsel representing Samsung in courts and jurisdictions outside the United States.”

“At this point, things get murky. According to a declaration from Nokia’s Chief Intellectual Property Officer, Paul Melin, on June 4, 2013, in a meeting between Samsung and Nokia licensing executives, Dr. Seungho Ahn informed Nokia that the terms of the Apple-Nokia license were known to him. Specifically, according to Mr. Melin, Dr. Ahn stated that Apple had produced the Apple-Nokia license in its litigation with Samsung, and that Samsung’s outside counsel had provided his team with the terms of the Apple-Nokia license. Mr. Melin recounts that to prove to Nokia that he knew the confidential terms of the Apple-Nokia license, Dr. Ahn recited the terms of the license, and even went so far as to tell Nokia that “all information leaks.” Mr. Melin also reports that Dr. Ahn and Samsung then proceeded to use his knowledge of the terms of the Apple-Nokia license to gain an unfair advantage in their negotiations with Nokia, by asserting that the Apple-Nokia terms should dictate terms of a Samsung-Nokia license.”

Over the next few weeks, Samsung appealed the order to District Judge Lucy Koh, who was even more critical, finding the disclosures “improper” and Samsung’s lack of cooperation “inexcusable”.  A couple weeks later, Samsung provided sworn declarations, including one by Dr. Ahn that strongly contradicted Nokia’s representation of the June meeting. At a follow up hearing, Judge Grewal said he was not yet convinced that sanctions were warranted, ordering an “in camera” review of documents that Samsung claimed as privileged which Apple doubted that they were legitimately withheld from its lawyers.

As for Quinn Emanuel, who is also facing potential sanctions, partner John Quinn acknowledged the inadvertent disclosure, which was apparently due to an associate at the firm failing to obscure a footnote and two paragraphs while performing a digital redaction of the 150-page report and announced the creation of a new document retention policy to provide a “second pair of eyes” and avoid similar errors in the future (as reported by IT-Lex)

This past Friday, Judge Grewal ordered Samsung and Quinn Emanuel to show cause why they should not be sanctioned, stating “Having finally crawled out from under the boxes, it appears to the undersigned that if anything was breached, it was this court’s protective order, and that sanctions against Samsung and its attorneys are warranted”.  However, he gave Samsung one last chance to defend its actions ordering Samsung to file a brief by December 2 to explain why it should not be sanctioned, while also allowing Apple and Nokia to file a brief to propose appropriate sanctions, with a hearing on the matter set for December 9.

It will be interesting to see what transpires from here.  There have been at least 31 court filings so far this year in this case, so it looks like they’re just getting warmed up.

So, what do you think?  Are Quinn Emanuel and Samsung in serious trouble?  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.

Another New Deliverable from EDRM – eDiscovery Trends

Do you know what container files are?  How about the L600 Code Series?  Do you know common methods for culling data?  What about the difference between a targeted and non-targeted collection strategy?

If you don’t know the answer to these and many other questions related to eDiscovery, you should check out the latest deliverable from the Electronic Discovery Reference Model (EDRM) Metrics team, the EDRM Metrics Glossary.

As noted in their press release announcement, the glossary contains definitions for 90 terms used in connection with the updated EDRM Metrics Model published in June 2013 (which was covered by the blog here).  The EDRM Metrics Model provides a framework for planning, preparation, execution and follow-up of eDiscovery matters and projects by depicting the relationship between the eDiscovery process and how information, activities and outcomes may be measured.

The new glossary was developed by the EDRM Metrics team, led by Kevin Clark and Dera Nevin with special assistance from team members Erin Corken, Eric Derk, Matthew Knouff, Carla Pagan, David Robertson, Bob Rohlf, Jim Taylor, Vicki Towne and Sonia Waiters.

The entire EDRM Metrics Glossary can be found here.

It has been a busy year for EDRM.  In addition to announcing a transition to nonprofit status by May 2014, since the May annual meeting, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.  And, just a couple of weeks ago, EDRM published new Collection Standards for collecting electronically stored information (ESI).  And, there is still almost half a year to go before next year’s annual meeting.  Wow.

So, what do you think?  Will you use the new EDRM Metrics Glossary?  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.

Here’s a New eDiscovery Market Projection That’s Absolutely Rad(icati) – eDiscovery Trends

The Radicati Group, Inc. has just released its latest study, eDiscovery Market, 2013-2017, that offers an in-depth analysis of the worldwide market for eDiscovery software solutions.  According to their study, the market for eDiscovery solutions will grow from over $1.4 billion in 2013 to over $3.7 billion in 2017.  That’s a 164% total increase, representing an average annual growth rate of over 28% over the next four years!

As they note in their Executive Summary, the information in the report is primarily derived from three primary sources:

  • Their Worldwide Database which tracks user population, seat count, enterprise adoption and IT use from 1993 onwards.
  • Surveys conducted on an on-going basis in all market areas that they cover.
  • Market share, revenue, sales and customer demand information derived from vendor briefings.

The Radicati Group predicts that in the next 2-3 years “most corporations in the US will have deployed an eDiscovery solution (either on-premises, hosted, or hybrid). These solutions will of course be capable of interfacing with other eDiscovery solutions in use by outside legal firms, but they will serve as the first line of corporate response to litigation.”  They list five key drivers for deployment of eDiscovery solutions by corporate organizations, as follows:

  • Increasing Litigation
  • Growth in Compliance Requirements
  • Need for Proactive eDiscovery
  • Emergence of New Content Sources
  • Overabundance of Stored Data

Their specific eDiscovery software market revenue estimates by year are as follows (in millions):

  • 2013: $1,418
  • 2014: $1,773
  • 2015: $2,251
  • 2016: $2,904
  • 2017: $3,775

The Radicati Group also provides a brochure containing the Table of Contents for the report, which covers Market Analysis, which includes definition, segmentation, key drivers, eDiscovery solutions trends and pricing models for the market, as well as a review of key players in the eDiscovery software market.  Clearly, they simply copied the TOC to a new document to provide the brochure, as it is filled with “Error! Bookmark not defined” messages.  Nonetheless, the brochure does give a sense of what the report covers.

The cost for the report is $3,000 by company PO, or $2,500 by credit card.  You can buy it via the credit card route here.

Curious about other eDiscovery industry growth predictions and analysis?  Take a look at some of the ones we’ve recently covered – here, here and here.

So, what do you think?  How big do you think the eDiscovery software market will be by 2017?  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 Rules Defendant Doesn’t Have Controls of PCs of Former Members, Denies Plaintiff’s Motion to Compel – eDiscovery Case Law

To require a party to produce evidence in discovery, the party must have “possession, custody, or control” of the evidence. In Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas v. Nemaha Brown Watershed Joint District No. 7, No. 06-CV-2248-CM-DJW (D. Kan. Sept. 23, 2013), the defendant did not have control over the personal computers of its former members, employees, or staff; it did not have the legal right to obtain information from them “on demand.” Therefore, the court rejected the plaintiff’s motion to compel and refused to order the forensic examination of the personal computers of current or former members, employees, or staff.

In this water rights lawsuit, the Tribe filed a motion to compel seeking an order that the defendant district produce documents and permit the forensic examination of its computers. In August 2012, the Tribe issued a request for production of the documents and computers for inspection on two counts it had recently added to its second amended complaint. Although the district responded, the Tribe found the response lacking and claimed that the district had not produced all responsive documents.

The district objected on four grounds. First, and most important to the requests at issue here, the district maintained that it could not “compel former members of the Board of Directors, former staff, or former employees to produce documents that are in their possession but that are not in the possession of the Watershed District itself.” Second, the district averred that the requests duplicated earlier discovery requests on the first four counts of the complaint, where discovery had already closed. Third, the requests were vague and could include privileged documents. Fourth, the district had already produced all documents.

The court agreed that the district did not “have the duty or ability to compel production of documents from persons no longer associated with the District that are not parties to this action.” Under Federal Rule of Civil Procedure 34(a)(1), the district did not have “possession, custody, or control” of the requested documents, which it defined as having “actual possession, custody, or control” or “the legal right to obtain the documents on demand.” The Tribe could not meet its burden to prove that the district had control of the requested documents.

However, the district had not shown that the requests were duplicative or cumulative; if any documents were privileged, the district would have to provide a privilege log. It rejected the Tribe’s claim that documents from a third party supported its argument that the district had not produced all documents.

As for the Tribe’s request for an order requiring the forensic mirror imaging of the computers personally owned by the current and former district board members, employees, and staff, the court sided with the district. The advisory committee notes to Rule 34(a), which permits the inspection of electronically stored information, provide that “the inspection of a responding party’s hard drive is not routine, but might be justified in some circumstances.” Here, the district did not have possession, custody, or control of these computers and thus could not produce them; moreover, the Tribe could not show “beyond speculation” that these computers were used for district business. Finally, the court noted that it had “significant concerns regarding the intrusiveness of the request and the privacy rights of the individuals to be affected,” especially in light of the Tribe’s “broad, non-specific request” for inspection.

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.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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.

Opening Statement from Senator Coons on Proposed Rules Changes – eDiscovery Trends

Yesterday, we discussed the opening of a congressional hearing opened with at least one senator voicing concerns about whether the proposed changes to the Federal rules (drafted and approved for public comment) would be effective at curbing the skyrocketing costs of discovery.  Based on a couple of questions that I received about his comments, I located the Opening Statement for the hearing in question and thought it would be of interest.

As noted yesterday, Congress ultimately will review the changes before they go into effect near the end of 2015.   U.S. Sen. Christopher Coons (D-Del.), who chairs the Subcommittee on Bankruptcy and the Courts, raised some interesting questions and concerns in his Opening Statement for the hearing to examine the proposed changes to the Federal Rules of Civil Procedure proposed by the Judicial Conference’s Advisory Committee on Civil Rules.  Among other observations, Senator Coons noted that:

“Five times since 1980, the Judicial Conference has tweaked civil discovery rules in an attempt to curb perceived abuses.  In 1980, a pretrial conference was added to reduce the burdens of discovery.  In 1983, proportionality was first added as a limitation on discovery.  In 1993, the rules were amended to add presumptive discovery limits.  In 2000, the scope of discovery was narrowed.  Finally, just a few years ago in 2006, the proportionality provision instituted in 1983 was revised in an attempt to reflect the increased burdens of electronic discovery.

Today, we are faced with yet another incremental restriction on discovery.  Why would we expect these changes to work where others have failed?  And if discovery cost is not a problem in the majority of cases, is it appropriate to narrow the scope of discovery across the board?”

He also raised the question of whether judges are doing what they can to manage proportionality with the current rules, wondering whether judges are overworked:

“Commentators are in general agreement that judges could do more under the Rules than they are doing currently to narrow issues for discovery and reduce the burdens on producing parties.  Why aren’t they doing so?  Are judges overworked?”

The text of Senator Coons’ Opening Statement is available from his web site here.

So, what do you think?  Will the new rules changes penalize plaintiffs in smaller cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

By the way, one of my favorite blogs in eDiscovery topics and cases is Josh Gilliland’s Bow Tie Law’s Blog.  Congratulations to Josh for his 400th post!

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.

Could Senate Pose Roadblock to Federal Rules Changes? – eDiscovery Trends

As reported by Todd Luger in Law Technology News (Discovery Rules Changes Greeted With Skepticism in Senate), a congressional hearing opened with at least one senator voicing concerns about whether the changes would be effective at curbing the skyrocketing costs of discovery.

Changes to Federal Rules have been drafted and have been approved for public comment.  But, as the author notes, Congress ultimately will review any changes before they go into effect near the end of 2015.

U.S. Sen. Christopher Coons (D-Del.), who chairs the Subcommittee on Bankruptcy and the Courts, called the congressional hearing and “predicted that some proposed restrictions – such as reducing the number of depositions, interrogatories and requests for admission for each case – would do nothing about the high-stakes, highly complex or highly contentious cases in which discovery costs are a problem.”

However, Senator Coons expressed concerns that “those limits would likely restrict plaintiffs in smaller cases in which discovery costs are not a problem…especially in employment, discrimination and consumer fraud cases, when most relevant evidence is in the possession of the defendant.”

As the author notes, Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund Inc., “voiced those same concerns”, offering her own criticism.  “This is opening up a door to yet more time-consuming and expensive motions practice as we argue over what is proportional to the case,” she said.

Sounds like the battle to approve the rules changes has just begun.

So, what do you think?  Do they have a point?  Will the new rules changes penalize plaintiffs in smaller cases?  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.

Judge Grimm Shows that Discovery Doesn’t Have to Be…Grim – eDiscovery Best Practices

On the day this blog debuted, we covered one of the most well-known cases related to discovery abuses (Victor Stanley, Inc. v. Creative Pipe, Inc.), where Maryland District Judge Paul W. Grimm included in his order a provision that the defendant actually be “imprisoned for a period not to exceed two years” if he didn’t pay the plaintiff the attorney’s fees and costs to be awarded.  Now, Judge Grimm provides a new Discovery Order that sets requirements for attorneys in his court to conduct discovery in a proportional manner.

In Ralph Losey’s e-Discovery Team® blog, he provides a two part discussion of Judge Grimm’s new discovery order (Judge Grimm’s New Discovery Order Is Now An e-Discovery Best Practice, Part One and Part Two).  The posts are well worth reading for several reasons, including to see how many ways the Electronic Discovery Best Practices (EDBP.com) model can be displayed (here’s our coverage of it when it was introduced last year).  As Ralph notes:

“First, it is important to note that Judge Grimm’s Discovery Order is an actual Order that he enters at the beginning of many cases. It is not a recommendation, guideline, or suggested protocol. The Maryland District Court’s Suggested Protocol for Discovery of Electronically Stored Information is a separate document that remains in effect. If you do not follow a Suggested Protocol, you may get a grim scowl and a tsk-tsk. If you do not follow an Order, you may go to jail. Just ask Victor Stanley.”

It was technically Mark Pappas of Creative Pipe who was threatened with imprisonment, but let’s not quibble… 😉

Anyway, as Ralph notes, the essence of the order is proportionality, with several phase one limits for proportionality (absent order of the Court upon a showing of good cause or stipulation by the parties), including:

  • RFPs are limited to 15 in number;
  • No more than 10 custodians can be searched;
  • ESI more than 5 years old is excluded;
  • Discovery is limited to reasonably accessible sources;
  • No more than 160 hours shall be expended for search and review services, including identifying potentially responsive ESI, collecting and searching that ESI (by any search method including properly validated keywords, Boolean searches and computer-assisted review), and reviewing that ESI for responsiveness, confidentiality, and for privilege or work product protection.

Both the producing and receiving parties have responsibilities, as follows:

“The producing party must be able to demonstrate that the search was effectively designed and efficiently conducted…[and] must maintain detailed time records to demonstrate what was done and the time spent doing it, for review by an adversary and the Court, if requested… Parties requesting ESI discovery and parties responding to such requests are expected to cooperate in the development of search methodology and criteria to achieve proportionality in ESI discovery, including appropriate use of computer-assisted search methodology.”

That isn’t just a set of guidelines, that’s an order!

A copy of Judge Grimm’s new Discovery Order can be found on a link in each of Ralph’s two posts above as well as on Ralph’s site here.

So, what do you think?  What do you think of the order?  Should orders like this be common in other courts?   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.

September/October Pop Quiz Answers! – eDiscovery Trends

Yesterday, we gave you a pop quiz for the topics we’ve covered in September and October.  If you’re reading the blog each day, these questions should be easy!  Let’s see how you did.  Here are the answers.

 

1. In which case was a key email deleted by the defendant, yet the plaintiff’s motion for sanctions was denied?:

 

A.    Logtale, Ltd. v. IKOR, Inc.
B.    Hixson v. City of Las Vegas
C.    American Home Assurance Co. v. Greater Omaha Packing Co.
D.    NOLA Spice Designs, LLC v. Haydel Enters., Inc.

 

2. Which of the following is NOT a component of a SWOT analysis?:

 

A.    Strengths
B.    Weaknesses
C.    Oversight
D.    Threats

 

3. What was the blended contract attorney hourly rate that the plaintiff’s lead attorney firm requested in the case In re Citigroup Inc. Securities Litigation?:

 

A.    $50
B.    $100
C.    $166
D.    $466

 

4. In which areas can a decision tree help determine the correct decision to address a discovery issue?:

 

A.    Decide whether to outsource litigation support and discovery activities or keep them in-house
B.    Determine whether to agree to produce native files or converted TIFF or PDF images to opposing counsel
C.    Neither of the Above
D.    Both of the Above

 

5. In which case did the judge rule that the defendant’s request for the plaintiff’s computer passwords and user names was “overly broad” “which far exceeds…proportionality limits”?:

 

A.    Logtale, Ltd. v. IKOR, Inc.
B.    Hixson v. City of Las Vegas
C.    American Home Assurance Co. v. Greater Omaha Packing Co.
D.    NOLA Spice Designs, LLC v. Haydel Enters., Inc.

 

6. When thinking about a successful outcome at the beginning of your case, which EDRM phase might you want to start thinking about first?:

 

A.    Presentation
B.    Preservation
C.    Processing
D.    Production

 

7. In which case did the court deny the plaintiff’s request for sanctions despite the disappearance of one hard drive and “scrambling” of another hard drive?:

 

A.    Net-Com Services, Inc. v. Eupen Cable USA, Inc.
B.    Anderson v. Sullivan
C.    Ancora Technologies, Inc. v. Apple, Inc.
D.    MediaTek, Inc. v. Freescale Semiconductor, Inc.

 

8. Based on Winston & Strawn’s interactive map, which state has not undertaken eDiscovery rulemaking activity to date?:

 

A.    Alabama
B.    Georgia
C.    Louisiana
D.    Mississippi

 

9. What percent of corporate legal departments have outsourced legal work at some point?:

 

A.    34 percent
B.    44 percent
C.    54 percent
D.    64 percent

 

10. As of October 24, how much data had been created this year in the Digital Universe?:

 

A.    3,025,049 petabytes (PB)
B.    2,954 exabytes (EB)
C.    2.88 zettabytes (ZB)
D.    All of the above

 

How did you do?  Next month, you’ll get another chance with November topics.  As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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.

 

September/October Pop Quiz! – eDiscovery Trends

We neglected to give you a pop quiz last month?  Oops!  Like we did for July and August (answers for July and August here and here), here is a pop quiz for the topics we covered in September and October.  If you’re reading the blog each day, these questions should be easy, but, yes, we still provide a link to the post with the answer if you need it.  Test your knowledge!  Tomorrow, we’ll post the answers for those who don’t know and didn’t look them up.

 

1. In which case was a key email deleted by the defendant, yet the plaintiff’s motion for sanctions was denied?:

 

A.    Logtale, Ltd. v. IKOR, Inc.
B.    Hixson v. City of Las Vegas
C.    American Home Assurance Co. v. Greater Omaha Packing Co.
D.    NOLA Spice Designs, LLC v. Haydel Enters., Inc.

 

2. Which of the following is NOT a component of a SWOT analysis?:

 

A.    Strengths
B.    Weaknesses
C.    Oversight
D.    Threats

 

3. What was the blended contract attorney hourly rate that the plaintiff’s lead attorney firm requested in the case In re Citigroup Inc. Securities Litigation?:

 

A.    $50
B.    $100
C.    $166
D.    $466

 

4. In which areas can a decision tree help determine the correct decision to address a discovery issue?:

 

A.    Decide whether to outsource litigation support and discovery activities or keep them in-house
B.    Determine whether to agree to produce native files or converted TIFF or PDF images to opposing counsel
C.    Neither of the Above
D.    Both of the Above

 

5. In which case did the judge rule that the defendant’s request for the plaintiff’s computer passwords and user names was “overly broad” “which far exceeds…proportionality limits”?:

 

A.    Logtale, Ltd. v. IKOR, Inc.
B.    Hixson v. City of Las Vegas
C.    American Home Assurance Co. v. Greater Omaha Packing Co.
D.    NOLA Spice Designs, LLC v. Haydel Enters., Inc.

 

6. When thinking about a successful outcome at the beginning of your case, which EDRM phase might you want to start thinking about first?:

 

A.    Presentation
B.    Preservation
C.    Processing
D.    Production

 

7. In which case did the court deny the plaintiff’s request for sanctions despite the disappearance of one hard drive and “scrambling” of another hard drive?:

 

A.    Net-Com Services, Inc. v. Eupen Cable USA, Inc.
B.    Anderson v. Sullivan
C.    Ancora Technologies, Inc. v. Apple, Inc.
D.    MediaTek, Inc. v. Freescale Semiconductor, Inc.

 

8. Based on Winston & Strawn’s interactive map, which state has not undertaken eDiscovery rulemaking activity to date?:

 

A.    Alabama
B.    Georgia
C.    Louisiana
D.    Mississippi

 

9. What percent of corporate legal departments have outsourced legal work at some point?:

 

A.    34 percent
B.    44 percent
C.    54 percent
D.    64 percent

 

10. As of October 24, how much data had been created this year in the Digital Universe?:

 

A.    3,025,049 petabytes (PB)
B.    2,954 exabytes (EB)
C.    2.88 zettabytes (ZB)
D.    All of the above

 

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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

 

EDRM Publishes Collection Standards – eDiscovery Trends

On the heels of announcing a transition to nonprofit status by May 2014, the Electronic Discovery Reference Model (EDRM) has now introduced Collection Standards for electronically stored information (ESI) for public comment.

In their press release to announce the new standards, EDRM noted that a group of attendees at this past May’s annual meeting “decided that ‘collection’ of ESI had evolved to the point that it made sense to document collection best practices and considerations for developing a collection strategy. The team, including Julie Brown, Teri Christensen, Kevin Clark, Sean d’Albertis, Kevin Esposito, Faisal Habib, Valerie Lloyd, Rick Nalle, Andrea Donovan Napp and John Wilson, has collaborated over the last several months to develop these standards which are now available for public comment.”

The collection standards page, which is available here, defines best practices to identify what processes are repeatable and the understandable risks and rewards that can be used to evaluate a strategy in various cases.  It focuses on different approaches for collection, including:

  • Forensic Image (Physical or Logical Target)
  • Custom Content/Targeted Image
  • Non-Forensic Copy
  • Exports – Harvesting Email
  • Exports – Non-Email
  • Exceptions (technologies that the standards don’t yet address, including mobile devices, instant messaging, MACs, International Protocols, and social media/ other types of cloud storage).

Each approach includes definitions, pros and cons of that approach and a glossary of terms.  Defined terms are hyperlinked with pop-up definitions, making it easy to define any terms that need it.

Want to know the different types of email formats that are typically exported for discovery purposes?  This document has it.  Want to know when you should consider creating a forensic image of the data in question?  It’s there too.  The standards provide clear best practices in easy-to-understand terms that should be a useful reference for anybody who will need to tackle ESI collection for their cases.  Good move to publish the standards they have now instead of waiting to address the exception technologies, which are much more complex.

According to the press release, the public comment period extends through November 15, 2013, which is only 17 days later than the standards were officially published.  That time period seems a bit short to me; hopefully, EDRM will consider extending it.

It’s shaping up to be a banner year for EDRM, as, since the May annual meeting, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.

So, what do you think?  Will these new Collection Standards be a useful best practices guide?  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.