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Electronic Discovery

Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was published yesterday.  Here’s the second part.

Why is the Lack of Technology Expertise among Lawyers Important?

To answer that question, we need to take a look at the current situation in terms of what we’re trying to accomplish with eDiscovery, whether knowledge of that is important and what do we need to do to change.

a. What Is the Goal of eDiscovery?

FRCP 1 makes the immediate goal of eDiscovery quite clear.

Rule 1. Scope and Purpose

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. (my emphasis added)

In that vein, Ron Friedmann once wrote a thought-provoking post entitled E-Discovery Goal: Win or Avoid Disaster?  in which he posed the theory that lawyers have forgotten the real goals of eDiscovery, which he said were:

A. Achieve the best outcome for the client

B. Minimize cost

C. Learn the facts of the case

D. Prepare offense or defense

E. Fulfill obligations to produce documents

b. What we do is important

But in addition to a legal and ethical obligation to perform efficiently, what we do in our work is important. I once spoke on a CLE panel with well-known ESI commentator Michael Arkfeld and he remarked that these are exciting times because for the first time we are seeing a true intersection of technology and the law.

But a speech I gave with Mary Mack, the CEO of ACEDS, was one that I remember because at the end of it, we were asked by an audience member “why should I go to law school’? My response was “Because what we do is important’!

Consider the US Judicial System for a moment. Modern human civilization has been in existence for roughly 44,000 years: Greek democracy began in 500 BC, the Magna Carta was signed in 1215 AD, the Enlightenment flourished from 1660-1780 AD with perhaps it’s crowning achievement, the American Revolution, occurring in 1776.

But our system of justice began with a document that says “we the people”.  It depends on confidence by the people that they system is working. Yet while 70% of poor households have a legal problem in any given year, only 4% consult a lawyer. 60% of middle classes with a legal problem don’t consult a lawyer because of cost.

A 2014 Gallup poll showed more people had confidence in our military than the criminal justice system.

But a more recent (2017) State of State Courts report by the National Center for State Courts found that 71% of respondents had overall confidence in their court system.

Although an equal number felt the courts were too complicated to navigate without an attorney.

Those statistics have remained fairly constant for over a decade and I would assert that what we are doing in the increasingly technical world of eDiscovery is crucial to keeping that confidence level intact.

c. Are We Stuck?

Ralph Losey once called the lack of technical understanding by attorneys as a “paper prison”. Ken Withers, Deputy Executive Director of The Sedona Conference, said something similar once as a keynote speaker Georgetown University 5th Annual Advanced E-Discovery Institute Program, when he stated too many attorneys think in the old paper based paradigm instead of progressing to become what he called the “protodigital lawyer.”

So, how do we change? How do we escape the paper prison?  We’ll publish Part 3 – How Can we Change the Situation? – tomorrow.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  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.

Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

Law firms today possess technology tools which have been proven to save time and money while simultaneously improving quality within the discovery process. Two thirds of the states have enacted rules which impose lawyer’s ethical duty to understand technology. And, case after case shows judicial endorsement of both of these concepts.

Why is it, then, that surveys continue to show that many lawyers have yet to embrace these new technologies and approaches? The latest survey on legal trends by Ari Kaplan reveals that many lawyers are still not sufficiently up to date with legal tech to make informed decisions about where to focus their firm’s resources and staff’s attention.  Several years ago, the results of the ILTA Law Department Survey reported a degree of technology usage that Ron Friedmann, in reporting on the survey, described as both “shocking” and “frightening”.  The survey released in Dec. of 2017 still showed problems, with 50% of the respondents using Windows 7 on their desktops and only 40% using a cloud-based email system.

Have these technological delays impacted law firms’ relationships with clients?  The 2018 Zapproved Corporate eDiscovery Benchmarking Report found that “… corporate legal departments prioritize streamlining and modernizing operations as a top priority…” .  Are outside counsel firms meeting this standard?  Not according to the EDRM/Exterro 2018 In-House Legal Benchmarking Report, which found that almost 70% of legal teams conducted most of their litigation services in-house compared to 50% last year.

Why is this? As long ago as 2009, Judge John Facciola said in a keynote address at LegalTech New York that “…attorneys are lacking in technology skills not from ignorance but stubbornness.” He elaborated that they simply aren’t taking the time to learn the basics of handling electronic data and, as a result, they don‘t really know what is important and what is just marketing fluff.

Has that changed in the past 10 years? When I asked that question recently of a currently sitting Federal court judge, he replied: ”marginally”.

In this paper, we will examine the situation more closely and ask several questions:

  1. Why is the lack of technology expertise among lawyers important?
  2. How can we change the situation?
  3. What are some good resources to help lawyers improve their technology expertise?
  4. What can we do to help lawyers become technologically proficient?

We’ll publish Part 2 – Why is the Lack of Technology Expertise Among Lawyers Important? – on Monday.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  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.

ACEDS Shows Why You Need Those Stinking Badges: eDiscovery Trends

If you love classic comedy movies like me, you probably love the classic Mel Brooks comedy Blazing Saddles.  My favorite quote from that movie is when the bandido says “Badges?  We don’t need no stinking badges!”  Well, the Association of Certified E-Discovery Specialists (ACEDS) is showing that you do, in fact, need those stinking badges to prove you’re CEDS certified.

According to Legaltech News (ACEDS New Digital Badge Aims to End E-Discovery Credential Fraud, written by Frank Ready), ACEDS has released a new digital badge that members can post to social media platforms, signature lines or LinkedIn to make it easier to  have their credentials validated with a single click to their social media pages, online résumé or signature line and prevent fraud.

ACEDS created the badge in partnership with credentials solutions developer Credly Acclaim. It was developed as a tool that could be used to prevent fraud or remind people that their certifications won’t renew themselves.

“We’ve had feedback from people who were concerned perhaps that some folks were putting initials after their names or keeping initials after their names even if they hadn’t re-certified,” Mary Mack, ACEDS executive director, said. “You just sort of forget that you have to re-certify. We communicate via email, and these days it’s really hard to get through spam filters. People move jobs, and so they may not even know that their certification is expired,” Mack said.

As of two weeks ago, it’s now available to members holding ACEDS’ Certified E-Discovery Specialist (CEDS) credential. The badge can be posted to Facebook, LinkedIn or inside an email, where a single click will redirect users to a secure third party site maintained by ACEDS.

“Certainly, it would probably save a step for a reference check. Or if you were checking people’s credentials, you’d be able to just press on the badge, and then you would see when the candidate certified and if they were still in good standing,” Mack said.

The other side of the employment equation also stands to benefit. Job candidates on the prowl can use the badge to check the status of their own certification and receive instructions on how to re-qualify.

Bandidos, you do need those stinking badges after all (at least if you want to prove you’re certified).

By the way, with regard to the Blazing Saddles quote, that’s not where the quote originated on film or TV, click on a previous blog post here (and scroll to the bottom) to find out where the exact quote originally appeared.  You may be surprised! :o)

So, what do you think?  Are you more likely to hire someone with a CEDS certification for eDiscovery jobs?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Warner Bros. Inc.

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 Grants Motion to Quash Subpoena From Defunct Non-Party Entity: eDiscovery Case Law

In Swift Beef Co. v. Alex Lee, Inc., No. 18-0105-EFM-KGG, (D. Kan. Oct. 31, 2018), Kansas Magistrate Judge Kenneth G. Gale, finding that “the information requested by the subpoena has limited relevance and is not proportional to the needs of the case” and that the non-party entity (Vantage Foods) had established that its production would be unduly burdensome, granted Vantage’s Motion to Quash Subpoenas and denied the plaintiff’s Motion to Compel Compliance with Subpoena as moot.

Case Background

In this contract dispute involving a meat processing and packaging plant located in Lenoir, North Carolina, Vantage had previously operated the Lenoir plant that is currently owned by the defendant and the subject of the underlying lawsuit. Vantage has no contractual or business relationships with either of the parties in the underlying lawsuit and “exists essentially as a defunct entity”.  Nonetheless, the plaintiff served a subpoena on Vantage on May 29, 2018.  Vantage contended that this initial subpoena was “procedurally defective and substantively flawed.”  As a result, the plaintiff served a second subpoena on June 12 to address those issues.

While Vantage conceded that the “procedural defects were corrected by Swift’s issuance of [the] modified subpoena….”, it argued that both subpoenas “should be quashed in their entirety and Vantage Foods should not be required to produce any of the items Swift requests.”  The court chose to consider the first subpoena moot as it was replaced by the modified subpoena.  Nonetheless, according to Vantage, the modified subpoena consists of “twenty-five sweeping requests for documents covering almost every conceivable aspect of Vantage Food’s obsolete business relationship with Alex Lee and Alex Lee’s subsidiaries.”  Vantage argued that its contracts with the defendant “are separate and completely unrelated to the disputes between Swift and Alex Lee, [thus] they cannot be used to support or defend any of the contract claims in this case.”  Also, as a defunct entity, Vantage estimated it would take hundreds of hours to complete a comprehensive search for documents responsive to its requests.

The plaintiff countered that the categories of requested information “are targeted to seek information relevant to Alex Lee’s counterclaims and arguments raised in the North Carolina Lawsuit.”  The plaintiff also argued that “Vantage has provided no evidence that responding to the subpoena would be unduly burdensome.”

Judge’s Ruling

Referencing Fed.R.Civ.P. 45, Judge Gale stated: “The Court agrees with Vantage that the relevance to the issues in the underlying lawsuit of this comparison between performances of different entities (one of which is not a party to this law suit) during different time periods is suspect…Given the burden imposed on Vantage and proportionality of the information requested to the needs of the case, discussed infra, the Court finds that Swift has not established the relevance of the information requested.”

Judge Gale also disagreed with the plaintiff’s take on Vantage’s burden, stating: “the subpoena is unduly burdensome on its face. Vantage’s ‘relative access’ to the information is tenuous. As a defunct entity, Vantage has limited resources, particularly in light of the burdensomeness of complying with the subpoena. The limited relevance of the information means it has limited ‘importance…in resolving the issues’ present in this lawsuit. Further, Vantage contends that ‘to the extent any of the documents requested in the Subpoenas are relevant to this case, they were likely stored on Alex Lee’s systems and Alex Lee should have access to them.’”

Stating “The Court will not compel compliance with a subpoena that appears to constitute a fishing expedition”, Judge Gale granted Vantage’s Motion to Quash Subpoenas and denied the plaintiff’s Motion to Compel Compliance with Subpoena as moot.

So, what do you think?  Was this a fishing expedition or did the plaintiff have a valid right to request documents from Vantage?  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.

Judge Says “Alexa, Please Testify in a Double Murder Case”: eDiscovery Trends

The occurrence of Internet of Things (IoT) devices in criminal cases is becoming more and more frequent.  Just last month, we covered a case where data from a Fitbit led to the arrest of a murder suspect (we covered another case like it last year as well).  Now, an Amazon Echo may have key evidence in a double murder committed last year.

According to Time (Judge Says Amazon Must Hand Over Echo Recordings in Stabbing Case, written by George Steer), a judge in New Hampshire has requested that Amazon hand over audio recordings from an Echo device present in a house where two women were found dead.

Timothy Verrill is accused of murdering 48-year-old Christine Sullivan and 32-year-old Jenna Pellegrini at a Farmington home in January 2017. Their bodies were found underneath a porch on the property with multiple stab wounds. Mr. Verrill pleaded not guilty the following month.

But prosecutors believe that there could be corroborating evidence recorded by an Amazon Echo device which was inside the house.

A ruling was handed down by Justice Steven M. Houran on Friday.

“The court directs Amazon.com to produce forthwith to the court any recordings made by an Echo smart speaker with Alexa voice command capability … as well as any information identifying cellular devices that were paired to that smart speaker during that time period,” the statement read.

A spokesperson for Amazon told the Associated Press Friday that the company would not be handing over any data “without a valid and binding legal demand served on us”.

In a similar case in March 2017 (which we covered here), Amazon agreed to hand over data from an Echo device that may have been privy to another murder — but only after the defendant consented to handing over the recordings (the charges were eventually dropped in that case).

Amazon’s lawyers had previously sought to quash the request on the grounds that it violated customer privacy.  That’s the battle these days, apparently — privacy vs. information.  They continue to be on a collision course which will lead to many more disputes, I suspect.

So, what do you think?  Will IoT devices be the “witnesses” of the future?  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.

Tomorrow is the Day to “Master” Your Knowledge of eDiscovery in Orlando for 2018: eDiscovery Trends

If you’re going to be in the Orlando area tomorrow, join me and other legal technology experts and professionals at The Master’s Conference Orlando event.  It’s a full day of educational sessions covering a wide range of topics!

The Master’s Conference brings together leading experts and professionals from law firms, corporations and the bench to develop strategies, practices and resources for managing eDiscovery and the information life cycle.  This year’s Orlando event covers topics ranging from big data to cybersecurity to project management best practices to evaluating technology to blockchain (twice!), among other things.

The event is being held tomorrow at Greenberg Traurig, P.A., 450 S Orange Ave #650, Orlando, FL 32801.  Registration begins at 8am, with sessions starting right after that, at 8:30am.

CloudNine will be sponsoring the session Data, Discovery, and Decisions: Extending Discovery From Collection To Creation at 9:45am tomorrow.  I will be moderating a panel of eDiscovery experts that includes Matthew Detzel, Attorney at Akerman LLP; Brad Koehler, Senior Director with Alvarez & Marsal; and Chad Roberts, Discovery Counsel at eDiscovery CoCounsel, pllc.  We will be discussing the challenges that big data places on information governance and legal discovery professionals and potential approaches for addressing those challenges.  Hope you can join us!

Click here to register for the conference.  The cost to attend can be as low as $150 for one day of terrific educational content.  So, if you plan to attend and haven’t registered yet (why not?), now is the time to do it.

While there are no more events scheduled for this year (because the year is almost over, duh), The Masters Conference is working on its event schedule for next year.  Should have more information on that soon!

So, what do you think?  Are you going to be in Orlando tomorrow?  If so, come join us!  If not, come to Orlando and then 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.

After Woman’s iPhone is Seized and She Sues, Homeland Security Agrees to Delete Her Data: eDiscovery Case Law

An American Muslim woman filed suit and asked a federal judge to compel border officials to erase data copied from her iPhone.  Now, she has settled her lawsuit with the government because federal authorities have now agreed to delete the seized data.

As discussed in Ars Technica (Feds took woman’s iPhone at border, she sued, now they agree to delete data, written by Cyrus Farivar), in the case Lazoja v. Nielsen, attorneys for the woman, Rejhane Lazoja, filed what’s called a Rule 41(g) Motion, otherwise known as a “Motion to Return Property.”  Normally, this rule is invoked for tangible items seized as part of a criminal investigation, not for digital data that can easily be copied, bit for bit. But here, the plaintiff, asked the judge to return data that she already had already received 90 days after the seizure when her iPhone was returned, fully intact.

Lazoja’s case has raised new questions about the state of the law with respect to warrantless border searches, particularly in the wake of two notable Supreme Court cases that have dealt with digital privacy in recent years, Carpenter v. United States (2018) and Riley v. California (2014).  The government claims that it has the authority to search and seize someone’s device without a warrant – otherwise needed in the interior of the country. Federal authorities rely on what’s known as the “border doctrine.” This is the controversial but standing legal idea that warrants are not required to conduct a search at the border. The theory has been generally recognized by courts, even in recent years.

In this case, however, Lazoja settled her lawsuit with the government after federal authorities agreed to delete the seized data.  So, the unusual approach worked in this case.

So, what do you think?  Should deletion of seized data be covered by a Rule 41(g) motion?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case 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 Time Again to Vote for Your Favorite Legal Blogs at The Expert Institute: eDiscovery Trends

Sure, you just voted a couple of days ago, but it’s time to do so again!  If you have a favorite eDiscovery blog or a favorite general legal blog, here’s a chance to see it recognized as one of the best.  Once again, The Expert Institute is looking for your votes in the 2018 Best Legal Blog Contest.

From now until December 15th, readers can select the “best of the best” in legal blogs.  The Expert Institute has broken the nominated blogs (which includes over 100 new blogs) into nine different categories, including Expert Witness, Litigation, Criminal Law, Legal News, Education & Law School Blogs and, of course, Legal Tech.

The rules of the contest are simple. Blogs will be ranked within their category by the number of votes they receive. In addition to winners in each category, the three blogs in any category that receive the most votes overall will come home with prizes, as well as a permanent position in their Best Legal Blogs Hall of Fame.

Readers can submit only one vote per blog, but can vote for as many blogs as they like across every category. In order to cast your vote, you must log into the social media platform of your choosing (Google, LinkedIn or Twitter) to verify your voter identity. This authentication is intended to prevent duplicate votes. The Expert Institute says it does not collect or share your information with third parties under any circumstances.

There are several excellent eDiscovery blogs out there and it would be great to see at least one or two receive enough votes to be recognized as a top legal blog in legal tech.  So, if there’s one you like, feel free to vote for it!  And, if that blog that you vote for happens to be eDiscovery Daily, even better!  ;o)

So, what do you think?  Do you have a favorite legal blog?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Here’s a Webcast to Help The “Luddite” Lawyer Learn to Embrace Technology: eDiscovery Webcasts

Technology Assisted Review (TAR) has been court approved for nearly seven years now and other technologies and approaches have been proven to save time and money while even improving quality within the discovery process. Yet, many lawyers still have yet to embrace these new technologies and approaches. Why, and what needs to happen to change things?  Here’s a webcast that will take a look at what needs to happen to help the “Luddite” legal professional learn to embrace technology.

Wednesday, November 28th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast The “Luddite” Lawyer: Will Lawyers Ever Embrace Technology?. In this one-hour webcast that’s CLE-approved in selected states, we will discuss a lawyer’s ethical duty to understand technology, how to address today’s challenges and embrace approaches for addressing those technologies, pertinent case law regarding the use of technology and resources for more information. Topics include:

  • Ethical Duties and Rules for Understanding Technology
  • Addressing Discovery of Various Sources of ESI Data
  • Understanding the Goals for Retrieving Responsive ESI
  • Considerations and Challenges for Using Technology Assisted Review
  • Considerations for Form of Production
  • Key Case Law Related to Technology Challenges
  • Resources for Expanding Your Technical Expertise
  • Recommendations for Becoming Technology Competent
  • Resources for More Information

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 to become competent working with the latest technologies, this webcast is for you!

So, what do you think?  Are you a technology “Luddite” or do you work with one?  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.

Court Orders Defendants to Sample Disputed Documents to Help Settle Dispute: eDiscovery Case Law

In Updateme Inc. v. Axel Springer SE, No. 17-cv-05054-SI (LB) (N.D. Cal. Oct. 11, 2018), California Magistrate Judge Laurel Beeler ordered the defendants to review a random sample of unreviewed documents in dispute and produce any responsive documents reviewed (along with a privilege log, if applicable) and report on the number of documents and families reviewed and the rate of responsiveness within one week.

Case Background

In this case where the plaintiff, creator of a news-aggregator cell-phone app, claimed that the defendants “stole” their platform and released a copycat app, learned that the defendants used the code name “Ajax” to refer their product.  The defendants determined that there were 5,126 unique documents (including associated family members) within the previously collected ESI that hit on the term “Ajax”, but they had not reviewed those documents for responsiveness.  The plaintiff asked the court to order the defendants to review those documents and produce responsive documents within two weeks.

The defendants claimed that the term “Ajax” is a project name that they created to refer to the plaintiff’s threatened litigation, not the product itself and claimed that “a sampling of the `Ajax’ documents confirms that, in every responsive document, the term `Ajax’ was used to refer to the dispute itself.”  But, the plaintiff cited 93 produced documents generally and two documents in particular (which the defendants were attempting to clawback as privileged) that referred to their product.  However, the defendants also claimed that it would be unduly burdensome and expensive to review the “Ajax” documents at this stage of the litigation and also argued that the term “Ajax” was not included in the ESI Protocol that the parties agreed upon months ago and should not be added at this late stage.

Judge’s Ruling

Judge Beeler observed this: “Whether ‘Ajax’ refers to Updateme or only the defendants’ dispute with Updateme is in some sense a distinction without a difference. Either way, the search term ‘Ajax’ is likely to return documents that are responsive to Updateme’s request for “[a]ll communications . . . concerning Updateme or the updaemi® application[.]” Documents concerning the defendants’ dispute with Updateme are likely documents concerning Updateme.” 

Judge Beeler also noted that “even if ‘Ajax’ refers to the dispute, that does not mean that documents that contain ‘Ajax’ are necessarily more likely to be privileged or protected from disclosure”, using a hypothetical scenario where two non-lawyers might discuss the impact of the “Ajax” dispute on profits.  She concluded her analysis with this statement: “To the extent the defendants are suggesting that if ‘Ajax’ purportedly refers to their dispute with Updateme, ESI containing ‘Ajax’ should remain outside the scope of discovery, the court is not convinced.”

As a result, Judge Beeler ordered the defendants to “randomly select 10% of the unreviewed documents {in dispute}, review them (and their associated family members) for responsiveness, produce responsive documents (and a privilege log for any responsive documents that are withheld), and provide a chart listing the number of documents and families reviewed and the rate of responsiveness” within one week.  Judge Beeler stated that the parties should then meet and confer if they continued to have disputes regarding these documents.

So, what do you think?  Should random sampling be used more to settle proportionality disputes or should it be a last resort?  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.

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