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Electronic Discovery

Here’s a Webcast to Learn about Key Case Law for 2018 and How it Affects Your 2019: eDiscovery Webcasts

2018 was another notable year for eDiscovery case law with several significant rulings that stand to impact eDiscovery practices and the admissibility of evidence.  How can these key case law decisions affect discovery within your organization?  Here’s a webcast that will discuss key case law rulings from last year and their impact on this year.

Wednesday, January 23rd at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Important eDiscovery Case Law Decisions of 2018 and Their Impact on 2019. In this one-hour webcast that’s CLE-approved in selected states, we will cover key 2018 case law decisions covered by the eDiscovery Daily blog and what the legal profession can learn from those rulings. Topics include:

  • Technology Assisted Review best practices and trends
  • The use of sampling to settle disputes
  • Admissibility vs. proportionality and privacy disputes
  • Form of production disputes and the issues involved
  • Key case rulings on discoverability of mobile device data
  • Privilege disputes and clawback requests
  • Impact of rules changes on boilerplate objections
  • The state of sanctions three years after the 2015 Fed Rules updates

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn how key case law rulings from last year can impact this year, this webcast is for you!

So, what do you think?  Are you big on case law and like to second guess judicial decisions?  Sure you do(!), so please join us!  And, 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.

Court Sides with Defendants in Subpoena of Police Department Records of Unsolved Murder: eDiscovery Case Law

This case combines civil and criminal concerns, so it’s a great case to lead off the new year!

In Farmers New World Life Ins. Co. v. Atchison, No. CIV-17-1254-D (W.D. Okla. Dec. 17, 2018), Oklahoma District Judge Timothy D. DiGiusti granted the “Children” defendants’ Motion to Compel against non-party City of Oklahoma City Police Department (“OCPD”) to comply with the Children’s subpoena of records related to the murder of their father in a civil case with the insurance company.

Case Background

In an interpleader action arising from the murder of the father of minor Defendants (“Children”), one of the other defendants was the named beneficiary on an insurance policy provided by the plaintiff, but was also the primary suspect in the murder of the Children defendants’ father.  The plaintiff filed the action seeking interpleader relief on the basis of Oklahoma’s “slayer statute,” and the “Children” became aware of the action and the insurance policy in February 2018 when they were served with summons. The Children submitted a request to the OCPD, but OCPD denied the request.  The “Children” then issued a subpoena to defendant City of Oklahoma City requesting records related to the murder.

The City of Oklahoma City objected to the subpoena on behalf of OCPD stating that the criminal investigation into the death was ongoing and that the release of the requested reports might interfere with the investigation (where no charges had been filed).  In response, the “Children” filed a Motion to Compel seeking compliance with the subpoena or, in the alternative, an in-camera inspection of the investigative file.  The City of Oklahoma City opposed the motion on privilege grounds, but indicated they would agree to an in camera inspection with counsel for the “Children” during the review but objected to the presence of counsel for the defendant suspected of murder; in turn, that defendant objected to an ex parte in-camera inspection or any production of discovery that is not likewise provided to her.

Judge’s Ruling

Judge DiGiusti cited United States v. Winner in stating “To assert the law enforcement evidentiary privilege, the responsible official in the department must lodge a formal claim of privilege, after actual personal consideration, specifying with particularity the information for which protection is sought, and explain why the information falls within the scope of the privilege.”  Given that the “Children” asserted that OCPD failed to comply with these requirements, Judge DiGiusti said:

“The Court agrees with the Children. The only objections received on behalf of OCPD are an email from an individual of unidentified position in the Oklahoma City government and a letter from a municipal counselor…OCPD presents no formal claim from any responsible official within the department indicating “personal consideration” and “specifying with particularity the information for which protection is sought.” Instead, the City presents only the affidavit and search warrant along with a general objection that producing the requested information falls under the privilege because it will harm the ongoing investigation. Such a broad explanation does not comply with the requirements of Winner.”

Noting that the victim was “murdered nearly two years ago, no charges have been filed, and no arrest made” and that the affidavit informed the suspected defendant “of the theory of the case against her, the types of evidence in possession of OCPD at the time of the affidavit, as well as the evidence sought through the search warrant”, Judge DiGiusti found that “OCPD has failed to establish with particularity how production would harm the ongoing murder investigation.”  Finding that “the Children have made a compelling argument that the investigative material is relevant and necessary to their case aimed at preventing Defendant Keisha Jones from recovering a life insurance policy on the basis of her alleged involvement in Mr. Atchison’s murder”, Judge DiGiusti ordered OCPD to produce “all materials responsive to the Children’s subpoena” to the chambers of the undersigned judge within thirty days.

So, what do you think?  Should the judge have allowed those materials to be produced, even for an in camera review?  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.

It’s 2019! Here Are Key Events Happening This Year in eDiscovery: eDiscovery Trends

Happy New Year everybody!  It’s 2019, and (as Mike Greenberg used to say on the old Mike and Mike ESPN morning sports show), we’re back and better than ever!  So, what is happening in eDiscovery in 2019?  A lot more than you probably realize and, thanks to Rob Robinson’s Complex Discovery blog, you have one place to check it all out!

In his post An Early Start: A Working List of 2019 eDiscovery Events, Rob provides not just a list of events (45 in all listed on the post – so far), but also provides links to each of them so that you can check them out for more info.  Here are a few highlights:

  • January 1.28-31: Legalweek, New York, NY (it’s only 26 days away!)
  • February 2.27-3.2: ABA TECHSHOW, Chicago, IL
  • February 2.28: Masters Conference, Dallas, TX (the first of several Masters Conference events this year)
  • March 3.5-7: 8th Annual Arkfeld eDiscovery Conference, Phoenix, AZ
  • May 5.8-10: 2019 Women in eDiscovery Conference, Austin, TX
  • May 5.14-16: Annual Corporate Legal Operations Consortium (CLOC) Institute, Las Vegas, NV
  • August 8.18-22: ILTACON 2019, Lake Buena Vista, FL
  • October 10.20-23: Relativity FEST, Chicago, IL
  • October 10.27.30: 2019 ACC Annual Meeting, Phoenix, AZ

Of course, as you can imagine on January 2, the timing of several events is still to be determined and some events may not yet be listed.  If you know of an event that needs to be listed or any corrections or other updates to be made, Rob provides a mechanism on his post to send him an email to let him know the event name, date, location and URL for the event.  So, this post will continue to reflect an updated list of events over time.

Also, believe it or not, Rob’s quarterly eDiscovery Business Confidence Survey is entering its fourth year.  Last week, Rob issued the Winter 2019 survey in this post titled A Winter of Discontent? The Winter 2019 eDiscovery Business Confidence Survey.  “A Winter of Discontent”?  We’ll see.  Anyway, Rob indicates that the response period is up to mid-January 2019, so if you want to participate, you should complete the survey ASAP.  As usual, we will cover the results here as we have done for the previous 12 surveys (click here for our coverage of the last survey, which includes trends over the 12 surveys and links to each of them).

So, what do you think?  How many events do you plan to attend 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.

You Have Gifts Already Waiting for You This Holiday Season: eDiscovery Holiday Greetings

Tom O’Connor and I conducted another successful CLE webcast yesterday, recapping the 2018 eDiscovery Year in Review, and it occurred to me that we don’t emphasize enough that all of the CLE webcasts we do are available for you to check out on your own – even months after the webcast has been conducted!  You just might be able to complete your entire CLE requirement by watching our webcasts!

But first, a quick note that The Expert Institute’s 2018 Best Legal Blog Contest has a little over two days left.  If you like our blog, please consider voting for us!  Simply go to this link, log in via Google, LinkedIn or Twitter, and cast your vote.  We appreciate the support!

Anyway, here’s a list of the CLE webcasts we’ve conducted this year:

Twelve CLE webcasts, twelve days of Christmas!  Coincidence?  I think not!  :o)

What a lot of people don’t realize is that CLE-accreditation is not just available for those who attended these webcasts live, it’s also available for those who view the webcasts on demand.  They are truly the gift that keeps on giving – CLE credits.  While each of these webcasts were accredited in selected states, CLE accreditation is available in additional states via reciprocity credit.  So, if you want to ask about CLE credit on any particular webcast, feel free to email me at daustin@cloudnine.com.

These twelve are part of nearly forty total informative webcasts on our site at our Webcasts page here.

I want to thank all of you who have read this blog over the course of this year and all of you who have attended at least some of our webcasts.  There are literally thousands of you who have done one or both and we wouldn’t have a reason to do it without your support.  Also, thanks to Tom O’Connor, my “wingman” for all of his contributions to our webcasts this year, he’s not only highly informative, but also a fun webcast partner.

We’re into our ninth year for eDiscovery Daily, and (other than the couple of weeks I take off at the end of each year to “recharge my batteries” – starting now!), are still going strong.  As we always say, please share any comments you might have or if you’d like to know more about a particular topic.  We love your feedback and suggestions (like the case law suggestion we received and published in yesterday’s post)!

Merry Christmas, Happy Holidays and Happy New Year!!  eDiscovery Daily will resume with new posts after the new year on January 2.

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 Defendant’s Request for Protective Order Against Producing Metadata for Medical Records: eDiscovery Case Law

I love it when a reader suggests a case for us to cover!  Thanks for the tip, Mike Hannon!

In Miller v. Sauberman, Index No. 805270/16 (N.Y. Dec. 6, 2018), New York Supreme Court Justice Joan A. Madden, despite the defendant’s estimated cost of $250,000 to produce metadata related to the plaintiff’s medical records, denied the defendant’s motion for a protective order and granted the plaintiff’s cross-motion to compel the production of that metadata within 30 days of the decision and order.

Case Background

In this action for damages for medical malpractice, the plaintiff’s counsel indicated that she received conflicting versions of the plaintiff’s medical record, with conflicting entries for the same items on the same record for the same days and those records were provided pre-suit.  The plaintiff argued that given the materiality of the fact as to when plaintiff developed bed sores, he was entitled to the audit trail and metadata that would presumably show when plaintiff’s electronic medical record was altered and by whom.

The defendant’s Chief Information Officer indicated his understanding that the record history was a “true record audit detailing any records with modifications that took place to the records after 7/29/14”.  However, he also indicated that they had not been able to determine the “root cause of why certain fields in the EMR print differently from the electronic version as seen on the computer screen.”  The plaintiff responded by stating that the defendant failed to provide an explanation for the “alteration” of the medical records, failed to produce the metadata and the audit trail exchanged was insufficient, since it did not cover the period after plaintiff’s discharge.

On August 16 after oral argument, the Court ordered the defendant to provide an affidavit regarding various parameters, including the software and storage systems, the date and parameters of the search, accessibility of the data in other storage systems or by other software systems and the cost of producing the requested metadata.  The vendor responsible for storing and maintaining the defendant’s electronic medical records indicated that they used “a software system called ‘SQL Server Management Studio’” and the “storage system from where the audit report was generated is called ‘SQL Server 2014’”.  The vendor also stated that “[b]ased on my many years of experience in the software and information technology sector generally, and in the area of metadata extraction specifically, in my opinion the cost estimate of producting [sic] full metadata for plaintiff’s entire medical record would be approximately $250,000 if MatrixCare were to outsource it to a vendor.”  Noting that the application is a “legacy system”, he also classified that as a “reasonable estimate, that could change extremely, either up or down, based on the specifics we would learn afer [sic] hiring the team and learning more about how the system gathers data.”

Judge’s Ruling

Judge Madden stated: “Based on the foregoing, plaintiff has made a sufficient showing for the production of metadata. Defendant has yet to provide a credible explanation for the different and conflicting versions of plaintiff’s medical record…Moreover, while the audit report is intended to show ‘all edits, changes, or modifications to any single record’ from May 8, 2014 through April 10, 2018, the report produced by Village Care shows no changes or modifications. Under these circumstances, where there is no explanation for the different and conflicting versions of plaintiff’s medical record, and where the issue as to when plaintiff developed bed sores is clearly material to plaintiff’s malpractice claim, plaintiff is entitled to the metadata for his medical record to determine if the medical record was altered, and if so, when and by whom.”  As agreed to by the plaintiff, Judge Madden limited the metadata to be produced to “Village Care’s Physician Progress Notes from May 8, 2014 through July 29, 2014”.  As a result, she denied the defendant’s motion for a protective order and granted the plaintiff’s cross-motion to compel the production of that metadata within 30 days of the decision and order.

So, what do you think?  Is it possible that it could actually cost $250K to produce metadata for a single patient’s medical records, even in a “legacy system”?  And, how do you get hired for that gig?  ;o)  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.

Today’s the Day to Learn about Important eDiscovery Developments for 2018: eDiscovery Webcasts

2018 has been a very busy and significant year from an eDiscovery standpoint. This year has had everything from new data privacy laws here and in Europe to the use of Internet of Things (IoT) devices in discovery to important trends regarding the use (or non-use) of Technology Assisted Review (TAR) to a landmark SCOTUS case regarding accessing cell phone location data without a warrant.  Today’s webcast will discuss what do you need to know about these and other important 2018 events and how they impact your eDiscovery efforts.  It’s our last webcast of the year!

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast 2018 eDiscovery Year in Review. In this one-hour webcast that’s CLE-approved in selected states, we will discuss key events and trends in 2018, what those events and trends mean to your discovery practices and provide our predictions for 2019. Topics include:

  • Technology Competence Trends and Developments
  • CLOUD Act and the Microsoft Ireland Case
  • General Data Protection Regulation (GDPR) and California Data Privacy Law
  • Data Privacy and Cybersecurity Trends and Challenges
  • SCOTUS Ruling in Carpenter v. US
  • Technology Assisted Review (TAR) Trends
  • Internet of Things (IoT) Devices as Sources of ESI
  • Business and Investment Trends within eDiscovery
  • Form of Production Trends and Disputes
  • New Resources for eDiscovery Best Practices

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here.  It’s not too late!  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn how key events and trends in 2018 can affect your eDiscovery practice, this webcast is for you!

So, what do you think?  Were you busy this year and have FOMO (fear of missing out) on important info for 2018?  If so, please join us!  And, 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.

No New Trial for Defendant After Carpenter Ruling Because of “Good-Faith” Exception: eDiscovery Case Law

In U.S. v. Leyva, No. 16-cr-20723 (E.D. Mich. Nov. 26, 2018), Michigan District Judge Mark A. Goldsmith, while acknowledging that the ruling in Carpenter v. United States (which held that the government must obtain a warrant before acquiring cell site location information (“CSLI”)) “applies retroactively” to the defendant’s case, ruled that “the question of whether a constitutional right is retroactive is distinct from the question of whether an individual is entitled to a remedy from any constitutional violation”.  Citing the “good-faith” exception, where law enforcement acts in good faith in obtaining evidence that is ultimately found to have been obtained in violation of an individual’s constitutional rights, Judge Goldsmith denied the defendant’s motion for a new trial on the basis of Carpenter.

Case Background

The defendant was charged with conspiracy to possess, and attempted possession of, heroin. At her trial, the Government introduced, among other evidence, location information from three cell phones.  The CSLI evidence showed that two of the phones traveled between Detroit and Columbus in late October 2016, and that the other phone traveled between Michigan and Texas in spring 2016. The Government used this evidence in an attempt to show that Leyva was participating in a drug-trafficking conspiracy and the jury returned its verdict on June 7, 2018, finding the defendant guilty on both counts.

After the Supreme Court ruling in Carpenter on June 22, 2018, the defendant then filed an instant motion pursuant to Federal Rule of Criminal Procedure 33(a), arguing that the CSLI evidence introduced at her trial was inadmissible and, therefore, a new trial was required.

Judge’s Ruling

Judge Goldsmith noted that “The parties do not dispute that the warrantless search of Leyva’s cell phone records violated her Fourth Amendment rights. Evidence obtained in violation of an individual’s Fourth Amendment rights may be subject to exclusion at trial. However, because “`exclusion exacts a heavy toll on both the judicial system and society at large,’ not all violations of the Fourth Amendment result in the exclusion of evidence.” United States v. Fisher.”

Judge Goldsmith continued: “One exception to the exclusionary rule is the “good-faith” exception, where law enforcement acts in good faith in obtaining evidence that is ultimately found to have been obtained in violation of an individual’s constitutional rights. The Supreme Court has ‘said time and again that the sole purpose of the exclusionary rule is to deter misconduct by law enforcement.’”

Judge Goldsmith stated that “Leyva argues that Carpenter should be applied retroactively to her case, citing Linkletter v. Walker, 381 U.S. 618 (1965) and Griffith v. Kentucky, 479 U.S. 314 (1987). The Court agrees that Carpenter applies retroactively to her case. But the question of whether a constitutional right is retroactive is distinct from the question of whether an individual is entitled to a remedy from any constitutional violation.”  Noting that “the Government argues that it relied on the then-valid SCA, as well as the Sixth Circuit’s decision in United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), in obtaining the CSLI for the three cell phones. It contends that the good-faith exception should apply to permit the introduction of this evidence at Leyva’s trial”, Judge Goldsmith stated “The Court agrees” and denied the defendant’s motion for a new trial.

So, what do you think?  Should the “good-faith” exception enable CSLI evidence acquired before the SCOTUS Carpenter ruling to remain admissible?  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.

Another Commentary from The Sedona Conference: eDiscovery Best Practices

The Sedona Conference® (TSC) Conference and its Working Group 1 on Electronic Document Retention & Production (WG1) have yet another publication to announce in 2018.  Last week, TSC’s WG1 group announced a new second edition commentary on Legal Holds.

Thursday, TSC’s WG1 group announced its Commentary on Legal Holds, Second Edition: The Trigger & The Process.  Much has changed in the law and technology since The Sedona Conference published the First Edition of this Commentary back in September 2010 (hey, that’s when this blog was founded!). This Second Edition of the Commentary on Legal Holds, which provides practical guidelines for determining when the duty to preserve relevant information arises as well as the scope of preservation, reflects:

  • the 2015 amendments emphasizing the proper scope of discovery and the enhanced role of proportionality in preservation, as well as sharpening the analysis of sanctions for the loss of discoverable electronically stored information (ESI);
  • clarification of the duty of a non-party to respond to a subpoena compared to the duty to preserve information;
  • new guidance on how organizations should address data protection laws and regulations that may affect an organization’s ability to implement legal hold data preservation measures outside of the United States;
  • developments in state and federal case law on preservation and spoliation;
  • new and novel sources of ESI requiring preservation and collection; and
  • advances in electronic document management technology.

Importantly, this Second Edition incorporates the knowledge and guidance embodied in the updated Third Edition of The Sedona Principles.

This Commentary is contained within a manageable 43 page PDF document and, as many good TSC commentaries do, includes several guidelines “to help a party meet its duty to preserve discoverable information and to provide pragmatic suggestions and a framework for creating a set of preservation procedures.”  Here they are:

Guideline 1: A reasonable anticipation of litigation arises when an organization is on notice of a credible probability that it will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation.

Guideline 2: Adopting and consistently following a policy governing an organization’s preservation obligations are factors that may demonstrate reasonableness and good faith.

Guideline 3: Adopting a procedure for reporting information relating to possible litigation to a responsible decision maker may assist in demonstrating reasonableness and good faith.

Guideline 4: Determining whether litigation is or should be reasonably anticipated should be based on a good-faith and reasonable evaluation of relevant facts and circumstances.

Guideline 5: Evaluating an organization’s preservation decisions should be based on the good faith and reasonableness of the decisions (including whether a legal hold is necessary and how it should be implemented) at the time they are made.

Guideline 6: Fulfilling the duty to preserve involves reasonable and good-faith efforts, taken as soon as is practicable and applied proportionately, to identify persons likely to have information relevant to the claims and defenses in the matter and, as necessary, notify them of their obligation to preserve that information.

Guideline 7: Factors that may be considered in determining the scope of information that should be preserved include the nature of the issues raised in the matter, the accessibility of the information, the probative value of the information, and the relative burdens and costs of the preservation effort.

Guideline 8: In circumstances where issuing a legal hold notice is appropriate, such a notice is most effective when the organization identifies the custodians and data stewards most likely to have discoverable information, and when the notice:

(a) communicates in a manner that assists persons in taking actions that are, in good faith, intended to be effective;

(b) is in an appropriate form, which may be written, and may be sent by email;

(c) provides information on how preservation is to be undertaken, and identifies individuals who can answer questions about preservation;

(d) includes a mechanism for the recipient to acknowledge that the notice has been received, read, and understood;

(e) addresses features of discoverable information systems that may make preservation of discoverable information more complex (e.g., auto delete functionality that should be suspended, or small sections of elaborate ac-counting or operational databases);

(f) is periodically reviewed and amended when necessary; and

(g) is followed up by periodic reminder notices, so the legal hold stays fresh in the minds of the recipients.43

Guideline 9: An organization should consider documenting the procedure of implementing the legal hold in a specific case when appropriate.

Guideline 10: Compliance with a legal hold should be regularly monitored.

Guideline 11: Any legal hold process should include provisions for releasing the hold upon the termination of the duty to preserve, so that the organization can resume adherence to policies for managing information through its useful life cycle in the absence of a legal hold.

Guideline 12: An organization should be mindful of local data protection laws and regulations when initiating a legal hold and planning a legal hold policy outside of the United States.

The Sedona Conference Commentary on Legal Holds, Second Edition: The Trigger & The Process is open for public comment through February 8, 2019. As always, questions and comments regarding the Commentary may be sent to comments@sedonaconference.org and the drafting team will carefully consider all comments received and determine what edits are appropriate for the final version.  You know the drill.

It’s been a busy year for The Sedona Conference® (TSC).  Earlier this year, the TSC has published the Public Comment Version of its Principles and Commentary on Defensible Disposition, the Public Comment Version of their Primer on Social Media, Second Edition (which we discussed in our panel at Relativity Fest earlier this week), the Public Comment version of its Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations, the final version of its new Data Privacy Primer and its Commentary on Information Governance, Second Edition.

So, what do you think?  Does your organization have a program for Legal Holds?  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.

A Second State Now Has Approved a Technology CLE Requirement for its Lawyers: eDiscovery Trends

In 2016, Florida became the first state to mandate technology training for lawyers, when it adopted a rule requiring lawyers to complete three hours of CLE every three years “in approved technology programs.”  Then, back in May, we reported that another state was getting close to requiring technology training for part of their yearly CLE requirement.  Now, that state has formally approved that requirement.

According to Robert Ambrogi and his Law Sites blog (North Carolina Becomes Second State to Mandate Technology Training for Lawyers), North Carolina (my new home away from home because of this) has become the second state to mandate continuing education for lawyers in technology. Beginning in 2019, all lawyers will be required to complete one hour per year of CLE devoted to technology training.

The North Carolina Supreme Court approved the requirement at a conference on Sept. 20, according to the State Bar’s website.

As proposed by the State Bar, the new rule read:

“Technology training” shall mean a program, or a segment of a program, devoted to education on information technology (IT) or cybersecurity (see N.C. Gen. Stat. §143B-1320(a)(11), or successor statutory provision, for a definition of “information technology”), including education on an information technology product, device, platform, application, or other tool, process, or methodology. To be eligible for CLE accreditation as a technology training program, the program must satisfy the accreditation standards in Rule .1519 of this subchapter: specifically, the primary objective of the program must be to increase the participant’s professional competence and proficiency as a lawyer. Such programs include, but are not limited to, education on the following: a) an IT tool, process, or methodology designed to perform tasks that are specific or uniquely suited to the practice of law; b) using a generic IT tool process or methodology to increase the efficiency of performing tasks necessary to the practice of law; c) the investigation, collection, and introduction of social media evidence; d) e-discovery; e) electronic filing of legal documents; f) digital forensics for legal investigation or litigation; and g) practice management software. See Rule .1602 of this subchapter for additional information on accreditation of technology training programs.

Here is the full text of the new rule amendments.

Next up, Pennsylvania?  Earlier this year, the ABA Journal reported that the Pennsylvania Bar has also recommended that the state supreme court adopt a one-hour, every two-years technology CLE requirement.  No word on that approval – yet.

So, what do you think?  Will we see more states require technology CLE?  Please share any comments you might have or if you’d like to know more about a particular topic.

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