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Electronic Discovery

SWOT Away Uncertainty in Your Discovery Practice – eDiscovery Best Practices
 

Understanding the relationships of your organization’s internal and external challenges allows your organization to approach ongoing and future discovery in a more strategic process.  A “SWOT” analysis is a tool that can be used to develop that understanding.

A “SWOT” analysis is a structured planning method used to evaluate the Strengths, Weaknesses, Opportunities, and Threats associated with a specific business objective.  That can be a specific project or all of the activities of a business unit.  It involves specifying the objective of the specific business objective and identifying the internal and external factors that are favorable and unfavorable to achieving that objective.  The SWOT analysis is broken down as follows:

  • Strengths: characteristics of the business or project that give it an advantage over others;
  • Weaknesses: are characteristics that place the team at a disadvantage relative to others;
  • Opportunities: elements that the project could exploit to its advantage;
  • Threats: elements in the environment that could cause trouble for the business or project.

“SWOT”, get it?

From an eDiscovery perspective, a SWOT analysis enables you to take an objective look at how your organization handles discovery issues – what you do well and where you need to improve – and the external factors that can affect how your organization addresses its discovery challenges.  From an eDiscovery perspective, the SWOT analysis enables you to assess how your organization handles each phase of the discovery process – from Information Governance to Presentation – to evaluate where your strengths and weaknesses exist so that you can capitalize on your strengths and implement changes to address your weaknesses.

How solid is your information governance plan?  How well does your legal department communicate with IT?  How well formalized is your coordination with outside counsel and vendors?  Do you have a formalized process for implementing and tracking litigation holds?  These are examples of questions you might ask about your organization and, based on the answers, identify your organization’s strengths and weaknesses in managing the discovery process.

However, if you only look within your organization, that’s only half the battle.  You also need to look at external factors and how they affect your organization in its handling of discovery issues.  Trends such as the growth of social media, and changes to state or federal rules addressing handling of electronically stored information (ESI) need to be considered in your organization’s strategic discovery plan.

Having worked through the strategic analysis process with several organizations, I find that the SWOT analysis is a useful tool for summarizing where the organization currently stands with regard to managing discovery, which naturally leads to recommendations for improvement.

So, what do you think?  Has your organization performed a SWOT analysis of your discovery process?   Please share any comments you might have or if you’d like to know more about a particular topic.

Graphic source: Wikipedia.

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.

Imagine if the Zubulake Case Turned Out Like This – eDiscovery Case Law

You’ve got an employee suing her ex-employer for discrimination, hostile work environment and being forced to resign.  During discovery, it was determined that a key email was deleted due to the employer’s routine auto-delete policy, so the plaintiff filed a motion for sanctions.  Sound familiar?  Yep. Was her motion granted?  Nope.

In Hixson v. City of Las Vegas, No. 2:12-cv-00871-RCJ-PAL (D. Nev. July 11, 2013), Nevada Magistrate Judge Peggy A. Leen ruled that the duty to preserve had not yet arisen when the plaintiff sent an internal email complaining she was being subjected to a hostile work environment and discrimination and that the failure to suspend its then-existing practice of automatically purging emails after 45 days did not warrant sanctions.

Here’s the timeline:

  • In March 2010, the plaintiff sent an email to a City of Las Vegas Personnel Analyst in the Employee Relations Division complaining she was being subjected to a hostile work environment and discrimination.
  • A chain of correspondence took place between April 6 and 7 of 2010 between the union representative assisting the plaintiff and a city employee.
  • In July 2010, the plaintiff alleged that the defendant constructively terminated her by forcing her to submit her resignation.
  • In September 2010, the plaintiff filed a complaint with the Nevada Equal Rights Commission.

The plaintiff and the defendant both produced the chain of correspondence from April 6 and 7 of 2010, but the defendant’s production omitted an email from the city employee (Dan Tarwater) to the union representative (Michael Weyland) commenting that “perhaps Weyland will have the good sense to have the Plaintiff retract her hostile work environment claim”.  Thus, the plaintiff filed a motion for sanctions.

The defendant indicated that their email system permanently deleted all messages after 45 days unless a sender or a recipient affirmatively saved the document to a folder, which didn’t happen with this particular email and also argued that “because Plaintiff has a copy of the email, any failure to disclose it is harmless”.

Judge Leen ruled that the “record in this case is insufficient to support a finding that the City was on notice Ms. Hixson contemplated litigation sufficient to trigger a duty to preserve electronically stored information by suspending its then-existing practice of automatically purging emails after 45 days.”  She also stated that “Plaintiff resigned July 15, 2010, and asserts she was constructively discharged. Nothing in the record suggests that on or before the date of her resignation, the Plaintiff threatened litigation, or informed the City that she had retained counsel about her employment disputes…By July 15, 2010, when Plaintiff resigned, the email system the City used as the time would have already purged Mr. Tarwater’s April 7, 2010, email unless it was saved to a folder.”

As a result, the court denied the plaintiff’s motion for sanctions.

So, what do you think?  Did the defendant have a duty to preserve the email and, if so, should the motion for sanctions 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.

Judge Says “Dude, Where’s Your CAR?” – eDiscovery Case Law

Ralph Losey describes a unique case this week in his e-Discovery Team ® blog (Poor Plaintiff’s Counsel, Can’t Even Find a CAR, Much Less Drive One).  In Northstar Marine, Inc. v. Huffman, Case 1:13-cv-00037-WS-C (Ala. S.D., 08/27/13), the defendant’s motion to enforce the parties’ document production agreement was granted after Alabama Magistrate Judge William E. Cassady rejected the plaintiff’s excuse that “it is having difficulty locating an inexpensive provider of electronic search technology to assist with discovery”.

On June 10 of this year, the parties entered into an agreement for handling electronically stored information (“ESI”) that noted:

“Both parties have or will immediately arrange to use computer-assisted search technology that permits efficient gathering of documents, de-duplication, maintaining the relationship between emails and attachments, full text Boolean searches of all documents in one pass, segregation or tagging of the search results, and export of all responsive files without cost to the other party. Both parties shall share with the other party the specific capabilities of their proposed computer-assisted search technology, and will endeavor to agree on the technology to be deployed by the other party.”

Sounds like a forward thinking plan, right?

As the order also noted, “In addition, the parties agreed to use certain search terms and agreed that ‘[a]ll documents in the search result sets shall be produced immediately to the other side in native format including all metadata.’”  On June 11, the court entered a Supplemental Rule 16(b) Scheduling Order adopting the parties’ plan with regard to ESI.

The defendants were ready quickly, informing the plaintiff on July 3 that they had “collected their ESI and were ready to produce the collected documents” and “inquired as to the method that plaintiff was using to collect its documents for production”.  The defendants sent subsequent inquiries on July 8 and July 24.  On August 6, plaintiff’s counsel notified defendants’ counsel that the plaintiff’s IT provider could not perform the tasks necessary to collect the ESI and that the plaintiff was “trying to locate outside providers of electronic search technology to assist with plaintiff’s ESI production”.  The next day, the defendants filed their motion to compel.

On August 21, the plaintiff filed a response to the defendants’ motion, not objecting to the defendants’ discovery requests, but rather stating that it was “having difficulty locating an inexpensive provider of electronic search technology to assist with discovery” and did not provide a date to complete its production obligation.

Noting that a Rule 16(b) Scheduling Order “is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril”, Judge Cassady called the plaintiff’s failure to comply with the Court’s scheduling order and supplemental orders “unacceptable”.  He also stated that “Plaintiff’s attempts to find an inexpensive provider certainly do not constitute due diligence” and granted the defendants’ motion to compel.

Ralph notes in his observations the perils of agreeing to search terms that have not been tested in advance.  I experienced that very issue with a client that had already agreed to search terms before I was brought in to assist – as a result, one term alone retrieved over 300,000 files with hits because they got “wild” with wildcards.  Always test your search terms before agreeing to them!

So, what do you think?  Do you test your search terms before agreement with opposing counsel?   Please share any comments you might have or if you’d like to know more about a particular topic.

Photo by Tracy Bennett– ©2000 – 20th Century Fox – All Rights Reserved

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.

Data Needs to Be Converted More Often than You Think – eDiscovery Best Practices

We’ve discussed previously that electronic files aren’t necessarily ready to review just because they’re electronic.  They often need processing and good processing requires a sound process.  Sometimes that process includes data conversion if the data isn’t in the most useful format.

Case in point: I recently worked with a client that received a multi-part production from the other side (via a another party involved in the litigation, per agreement between the parties) that included image files, OCR text files and metadata.  The files that my client received were produced over several months to several other parties in the litigation.  The production contained numerous emails, each of which (of course) included an email sent date.  Can you guess which format the email sent date was provided in?  Here are some choices (using today’s date and 1:00 PM as an example):

  • 09/03/2013 13:00:00
  • 9/03/2013 1:00 PM
  • September 3, 2013 1:00 PM
  • Sep-03-2013 1:00 PM
  • 2013/09/03 13:00:00

The answer: all of them.

Because there were several productions to different parties with (apparently) different format agreements, my client didn’t have the option to request the data to be reproduced in a standard format.  Not only that, the name of the produced metadata field wasn’t consistent between productions – in about 15 percent of the documents the producing party named the field email_date_sent, in the rest it was named date_sent.

Ever try to sort emails chronologically when they’re not only in different formats, but also in two different fields?  It’s impossible.  Fortunately, at CloudNine Discovery, there is no shortage of computer “geeks” to address problems like this (I’m admittedly one of them).

As a result, we had to standardize the format of the dates into one standard format in one field.  We used a combination of SQL queries to get the data into one field and string commands and regular expressions to manipulate dates that didn’t fit a standard SQL date format by re-parsing them into a correct date format.  For example, the date 2013/09/03 was reparsed into 09/03/2013.

Getting the dates into a standard format in a single field not only enabled us to sort the emails chronologically by date sent, it also enabled us to identify (in combination with other standard email metadata fields) duplicates in the collection based on metadata fields (since the data was in image and OCR formats, HASH algorithms weren’t a viable option for de-duplication).

Over the years, I’ve seen many examples where data (either from our side or the other side) needs to be converted.  It happens more than you think.  When that happens, it’s good to have a computer “geek” on your side to address the problem.

So, what do you think?  Have you encountered data conversion issues in your 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 Sides with Both Parties in Form of Production Dispute – eDiscovery Case Law
 

The opinion in Kwasniewski v. Sanofi-Aventis U.S. LLC, No. 2:12-cv-00515-GMN-NJK (D. Nev. June 28, 2013) suggests that producing parties can satisfy their obligation to produce documents in an organized manner by offering a table of contents, rendering text searchable, indicating which data responds to which request, and including certain metadata, such as Bates numbers.

During discovery, defendant Sanofi-Aventis responded to the plaintiffs’ discovery requests by producing a large number of documents. The plaintiffs objected, arguing that the response was improper because Sanofi-Aventis failed to provide an index, to indicate which documents corresponded to which request, and to Bates stamp the documents. Sanofi-Aventis argued that it complied with the discovery rules and produced documents as they were “kept in the usual course of business.” Moreover, it had produced the documents in a text-searchable format and included an index. The court denied the plaintiffs’ motion and ordered the parties “to meet and confer in good faith by discussing the merits of each argument in an effort to resolve the dispute without further Court involvement.”

The parties could not resolve the dispute on their own. Subsequently, the plaintiffs re-filed their motion to compel, asking Sanofi-Aventis to organize and Bates number its production by request. Sanofi-Aventis again asserted that it had produced the information properly.

The court began its analysis by quoting the Federal Rule of Civil Procedure 34. To prevent parties from “‘obscuring the significance of documents by giving some structure to the production,’” Fed. R. Civ. P. 34(b)(2)(E)(i)requires parties to choose either to “produce documents as they are kept in the usual course of business” or to “organize and label them to correspond to the categories in the request . . .” The court noted that “[p]roducing parties should not raise ‘unnecessary obstacles for the requesting party’ in the production of ESI.” As a result, “the production of ESI must be rationally organized to enable the parties to determine if responsive documents have been produced.”

Sanofi-Aventis responded that its production was organized and searchable; instead, the problem is that the plaintiffs had “not made a reasonable effort to determine which documents are responsive to their requests.”

The court found that Sanofi-Aventis had complied with Rule 34 by providing a table of contents that described “the types of documents and the volume and page number where those documents are located” and noted that “each volume number is readily identifiable via cover sheet.” Furthermore, Sanofi-Aventis “provided metadata for all the documents, which allows the Plaintiffs to identify the documents by bates range, file path, and document title.” Finally, all but 33 of the produced documents were text-searchable. Accordingly, the court concluded, “if the Plaintiffs make a reasonable effort, they should be able to obtain the documents responsive to their requests.”

Even so, the court found that Sanofi-Aventis’s responses were “deficient in that they create unnecessary obstacles for the plaintiffs”: they “should not have to guess which requests were responded to and which were not.” Therefore, the court granted the motion to the extent the plaintiffs sought “to determine whether the documents produced by Sanofi-Aventis were actually responsive to the Plaintiffs’ discovery requests.”

So, what do you think?  Was that a proper form of production?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will be celebrating Labor Day by…not laboring, so we’ll be back with a new post on Tuesday, September 3.

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.

Everything You Wanted to Know about Technology Assisted Review – eDiscovery Trends

Whether you were “afraid to ask” or not…

Rob Robinson has put together another terrific compilation, this time a compilation of articles about Technology Assisted Review and Predictive Coding over the past 1 1/2 years (from February 2012, last updated on August 12).  If you simply can’t get enough of the topic, you’ll want to check it out.

His compilation can be found at his Complex Discovery web site here (the title of the page is Technology-Assisted Review: From Expert Explanations to Mainstream Mentions).  According to my count, there are 632(!) articles regarding the topic.  Happy reading!

Of course, eDiscovery Daily made its fair share of contributions to the list.  Here are our posts regarding the topic on the site, in case you missed them and want to catch up:

Here are a few others that aren’t listed – just sayin’ Rob!  😉:

Thanks to Rob, once again, for providing a very useful compilation on a very important eDiscovery topic.  And, Rob, if you want to add links for the additional posts above, we won’t complain.  🙂

So, what do you think?  Do you keep up with articles about technology assisted review?  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.

Scheindlin Reverses Magistrate Judge Ruling, Orders Sanction for Spoliation of Data – eDiscovery Case Law

If you’re hoping to get away with failing to preserve data in eDiscovery, you might want to think again if your case appears in the docket for the Southern District of New York with Judge Shira Scheindlin presiding.

As reported in by Victor Li in Law Technology News, (Scheindlin Not Charmed When Revisiting Spoliation a Third Time), Judge Scheindlin, who issued two of the most famous rulings with regard to eDiscovery sanctions for spoliation of data – Zubulake v. UBS Warburg and Pension Committee of the Montreal Pension Plan v. Banc of America Securities – sanctioned Sekisui America Corp. and Sekisui Medical Co. with an adverse inference jury instruction for deleting emails in its ongoing breach of contract case, as well as an award of “reasonable costs, including attorneys’ fees, associated with bringing this motion”.

Last year, the plaintiffs sued two former executives, including CEO Richard Hart of America Diagnostica, Inc. (ADI), a medical diagnostic products manufacturer acquired by Sekisui in 2009, for breach of contract.  While the plaintiffs informed the defendants in October 2010 that they intended to sue, they did not impose a litigation hold on their own data until May 2012. According to court documents, during the interim, thousands of emails were deleted in order to free up server space, including Richard Hart’s entire email folder and that of another ADI employee (Leigh Ayres).

U.S. Magistrate Judge Frank Maas of the Southern District of New York, while finding that the actions could constitute gross negligence by the plaintiffs, recommended against sanctions because:

  • There was no showing of bad faith, and;
  • The defendants could not prove that the emails would have been beneficial to them, or prove that they were prejudiced by the deletion of the emails.

The defendants appealed.  Judge Scheindlin reversed the ruling by Magistrate Judge Maas, finding that “the destruction of Hart’s and Ayres’ ESI was willful and that prejudice is therefore presumed” and the “Magistrate Judge’s Decision denying the Harts’ motion for sanctions was therefore ‘clearly erroneous.’”

With regard to the defendants proving whether the deleted emails would have been beneficial to them, Judge Scheindlin stated “When evidence is destroyed intentionally, such destruction is sufficient evidence from which to conclude that the missing evidence was unfavorable to that party.  As such, once willfulness is established, no burden is imposed on the innocent party to point to now-destroyed evidence which is no longer available because the other party destroyed it.”

Judge Scheindlin also found fault with the proposed amendment to Rule 37(e) to the Federal Rules of Civil Procedure, which would limit the imposition of eDiscovery sanctions for spoliation to instances where the destruction of evidence caused substantial prejudice and was willful or in bad faith, stating “I do not agree that the burden to prove prejudice from missing evidence lost as a result of willful or intentional misconduct should fall on the innocent party.  Furthermore, imposing sanctions only where evidence is destroyed willfully or in bad faith creates perverse incentives and encourages sloppy behavior.”

As a result, Judge Scheindlin awarded the defendants’ request for an adverse inference jury instruction and also awarded “reasonable costs, including attorneys’ fees, associated with bringing this motion”.  To see the full opinion order (via Law Technology News), click here.

So, what do you think?  Should sanctions have been awarded?   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.

How Big is Your ESI Collection, Really? – eDiscovery Best Practices

When I was at ILTA last week, this topic came up in a discussion with a colleague during the show, so I thought it would be good to revisit here.

After identifying custodians relevant to the case and collecting files from each, you’ve collected roughly 100 gigabytes (GB) of Microsoft Outlook email PST files and loose electronic files from the custodians.  You identify a vendor to process the files to load into a review tool, so that you can perform review and produce the files to opposing counsel.  After processing, the vendor sends you a bill – and they’ve charged you to process over 200 GB!!  Are they trying to overbill you?

Yes and no.

Many of the files in most ESI collections are stored in what are known as “archive” or “container” files.  For example, while Outlook emails can be stored in different file formats, they are typically collected from each custodian and saved in a personal storage (.PST) file format, which is an expanding container file. The scanned size for the PST file is the size of the file on disk.

Did you ever see one of those vacuum bags that you store clothes in and then suck all the air out so that the clothes won’t take as much space?  The PST file is like one of those vacuum bags – it often stores the emails and attachments in a compressed format to save space.  There are other types of archive container files that compress the contents – .ZIP and .RAR files are two examples of compressed container files.  These files are often used to not only to compress files for storage on hard drives, but they are also used to compact or group a set of files when transmitting them, often in email.  With email comprising a major portion of most ESI collections and the popularity of other archive container files for compressing file collections, the expanded size of your collection may be considerably larger than it appears when stored on disk.

When PST, ZIP, RAR or other compressed file formats are processed for loading into a review tool, they are expanded into their normal size.  This expanded size can be 1.5 to 2 times larger than the scanned size (or more).  And, that’s what some vendors will bill processing on – the expanded size.  In those cases, you won’t know what the processing costs will be until the data is expanded since it’s difficult to determine until processing is complete.

It’s important to be prepared for that and know your options when processing that data.  Make sure your vendor selection criteria includes questions about how processing is billed, on the scanned or expanded size.  Some vendors (like the company I work for, CloudNine Discovery), do bill based on the scanned size of the collection for processing, so shop around to make sure you’re getting the best deal from your vendor.

So, what do you think?  Have you ever been surprised by processing costs of your ESI?   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.

Permissive Adverse Inference Instruction Upheld on Appeal – eDiscovery Case Law

In Mali v. Federal Insurance Co., Nos. 11-5413-cv, 12-0174-cv (XAP) (2d Cir. June 13, 2013), the Second Circuit explained the distinctions between two types of adverse inference instructions: a sanction for misconduct versus an explanatory instruction that details the jury’s fact-finding abilities. Because the lower court opted to give a permissive adverse inference instruction, which is not a punishment, the court did not err by not requiring the defendant to show that the plaintiffs acted with a culpable state of mind.

After a fire destroyed a barn converted into a residence, the plaintiffs sought to recover $1.3 to $1.5 million from their insurance policy. The insurance company made three payments before becoming skeptical of the plaintiffs’ claim. In particular, the company balked at the plaintiffs’ statement that they had high-end amenities, such as four refrigerators and copper gutters, and their sketch of the barn’s layout, which showed fourteen rooms, a second floor with four rooms and a bathroom, and four skylights. During discovery, the plaintiffs claimed they had no photographs of the barn, but at trial, an appraiser testified that the plaintiffs had shown her photographs of items in the barn and of the barn, which she testified only had one floor, not two as the plaintiffs claimed.

The defendants asked the court to impose an adverse inference instruction on the plaintiffs as a sanction for destroying the photographic evidence. Over the plaintiffs’ objection, the court instructed the jury that it could draw an adverse inference from the plaintiffs’ failure to produce the photographs. The jury agreed with the defendant and found the plaintiffs had submitted fraudulent claims that forfeited their insurance coverage.

On appeal, the plaintiffs argued that the jury’s verdict should be vacated and that a new trial was required because the court did not make findings to justify this sanction. However, the appellate court ruled that the plaintiffs’ argument was “based on a faulty premise” because the trial court “did not impose a sanction on the Plaintiffs.” Therefore, no findings were required. It also found the plaintiffs’ reliance on a prior Second Circuit decision, Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 107 (2d Cir. 2002), where the court ruled that a trial court “must find facts that justify” an adverse inference instruction based on spoliation, inapposite. In Residential Funding, the plaintiff failed to meet its discovery obligations because it did not produce e-mails or backup tapes. The court refused to impose the defendant’s requested sanction, which was an instruction to the jury that it “‘should presume the e-mails . . . which have not been produced, would have disproved [Residential]’s theory of the case,’” because the defendant had not provided facts sufficient to support the sanction.

Here, the Second Circuit explained the distinction between the two types of adverse inferences in these cases: (1) one that punishes “misconduct that occurred outside the presence of the jury during the pretrial discovery proceedings, often consisting of a party’s destruction of, or failure to produce, evidence properly demanded by the opposing party,” and (2) one that “simply explains to the jury, as an example of the reasoning process known in law as circumstantial evidence, that a jury’s finding of certain facts may (but need not) support a further finding that other facts are true.” The court ruled that the latter instruction “is not a punishment” but instead is “an explanation to the jury of its fact-finding powers.”

The Mali court found the trial court’s instructions did not “direct the jury to accept any fact as true” or “instruct the jury to draw any inference against the Plaintiffs.” Because “the court left the jury in full control of all fact finding,” it fell within the explanatory classification of instructions.

So, what do you think?  Was the permissive adverse inference instruction warranted?   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.

Thursday’s ILTA Sessions – eDiscovery Trends

As noted the last three days, the International Legal Technology Association (ILTA) annual educational conference of 2013 is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Today is your last chance(!) to check out the show if you’re in the Las Vegas area with a number of sessions available and over 180(!) exhibitors providing information on their products and services.  Here are today’s sessions in the main conference tracks related to litigation support and eDiscovery.

1:30 PM – 2:45 PM:

Discovery Solutions Part 1: The Selection Process

Description: When faced with choosing a new discovery solution, whether internal or outsourced, firms must undertake common tasks and develop goals for the selection process. In part one of this two-part series, hear different perspectives on identifying, researching, evaluating and selecting tools that fit varying workflows and needs. Panelists will discuss their journeys, including development of business requirements, evaluation processes and final installation models.

Speakers are: Mary Pat Poteet – Project Leadership Associates, Inc.; Stephen Dooley – Sullivan & Cromwell LLP; Brett Burney – Burney Consultants; Danny Thankachan – Thompson & Knight, L.L.P.

3:15 PM – 4:30 PM:

Discovery Solutions Part 2: Implementation and Lessons Learned

Description: In part two of this series about discovery solutions, panelists will discuss the implementation of their discovery solutions, including the models/workflows and software their firms selected. You will also hear “lessons learned” analyses of the projects, which will include challenges identified and other considerations that can improve processes and add value to future business or technology projects.

Speakers are: Mary Pat Poteet – Project Leadership Associates, Inc.; Stephen Dooley – Sullivan & Cromwell LLP; Brett Burney – Burney Consultants; Danny Thankachan – Thompson & Knight, L.L.P.

For a complete listing of all sessions at the conference, click here.

So, what do you think?  Have you attended ILTA this year?  If so, how did you like the conference?  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.