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Electronic Discovery

Results of the Microsoft Office 365 eDiscovery Challenge Survey: eDiscovery Trends

Remember the Microsoft Office 365 eDiscovery Challenge Survey that Tom O’Connor and Don Swanson were conducting?  The results are in!

The results were published on Bob Ambrogi’s LawSites blog last week.  The survey was conducted over seven weeks using both an online SurveyMonkey tool and telephone interviews. Tom and Don received a total of 75 survey responses from corporations, government agencies and law firms, with the estimated breakdown of respondents mostly being from corporate legal (69 percent of the total respondents).  Law firms were a distant second at 20 percent, followed by government respondents at 10 percent.  Vendors constituted just 1 percent of the responses.  1 percent!

Of all respondents, approximately 30 percent were attorneys. The remainder were litigation support professionals, paralegals and IT staff.

As for the questions, here are some notable results:

What was your first reaction to Microsoft offering eDiscovery features within Office 365?: Nearly two-thirds of respondents said their initial reaction was either very positive and promising (37 percent), or somewhat positive (29 percent).  Thirteen percent of respondents did not know that O365 offered eDiscovery functionality.

Does your organization run Microsoft Office 365? Version?: Just over 3/4 of respondents said they were running O365, with version E3 (G3) the leader at 32 percent.  22 percent did not know what version they use.  Only 7 percent had no plans to move to O365.

Which EDRM activities can be/have been performed within Office 365 eDiscovery? (check all that apply): Generally, the phases on the left side of the EDRM model were considered to be the most likely to be performed within O365, with Preservation the leader at 73 percent, closely followed by Identification at 72 percent.  However, only 46 percent and 41 percent of respondents (respectively) had actually used it in those phases.  40 percent of respondents had never used any of O365’s eDiscovery capabilities.

Are Microsoft Office 365’s eDiscovery features helpful?: Over 4 out of 5 respondents indicated that they would definitely need (53 percent) or probably need (29 percent) O365’s eDiscovery capabilities.  Only two percent of respondents indicated that they probably don’t need or definitely don’t need O365’s eDiscovery capabilities (1 percent each).

Click here for a complete set of results on Bob’s blog.  In early 2019, Tom and Don will be publishing their findings and observations.

So, what do you think?  Are you surprised by any of the finding?  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 Rules on Dispute over Native File Format Production and Metadata: eDiscovery Case Law

In Metlife Inv’rs. USA Ins. Co. v. Lindsey, No. 2:16-CV-97 (N.D. Ind. Oct. 25, 2018), Indiana Magistrate Judge John E. Martin granted the motion of the defendants/counter plaintiffs (defendants) to compel the plaintiff/counter-defendant (plaintiff) to produce all responsive documents in the form in which they are maintained in the usual course of business (i.e., native files with metadata) and also ordered the defendants to file an itemization of costs and fees, including attorney’s fees, incurred in making the Motion to Compel.

Case Background

In this case where the plaintiff sought rescission of a life insurance policy issued to one of the defendants based on her alleged misrepresentations during the application process.  Throughout written discovery, the plaintiff generally produced documents in non-searchable PDF format, which it claimed is the “most usable format” appropriate for the information. The defendants repeatedly objected, arguing that the plaintiff was obligated to produce the documents as they are maintained in the normal course of business, i.e., in their “native” format.

The defendants identified several electronic platforms in which the plaintiff kept its documents in the usual course of business, but the plaintiff indicated that the additional data that the defendants would receive from production in native format was irrelevant, and claimed that it was not obliged to produce it, leading to the defendants’ motion.

Judge’s Ruling

Noting that “MetLife concedes that the method in which it produced the documents is not how they are kept ‘in the usual course of business,’ as required by Rule 34(b)(2)(E)(i)” and that MetLife “cites no authority showing that this satisfies its obligations under Rule 34”, Judge Martin also stated that “MetLife’s production was not consistent with what the parties discussed at the beginning of discovery. On July 28, 2016, the parties filed their Report of Parties’ Planning Meeting, which stated: ‘The parties anticipate making a preliminary production of ESI by hard copy…All ESI produced electronically will be produced in native format to the extent possible.” (emphasis added). After MetLife made its initial production in response to Defendants’ first requests for production, Defendants objected to the format of the documents, but MetLife apparently ignored the objections and continued to produce in PDF format.”

Judge Martin also stated: “MetLife says that production in native format would not yield relevant information, because in its view the ‘only remaining issue’ in the case is whether it had a duty to investigate the information in the policy application prior to issuing it. However, MetLife has not shown that the requests fall outside of the legitimate scope of discovery… If the Court were to apply this standard, information about who accessed the application information – which might be visible in native form – could be relevant to whether that person should have investigated further.”

As a result, Judge Martin granted the defendants’ motion to compel the plaintiff to produce all responsive documents in native format and also ordered the defendants to file an itemization of costs and fees, including attorney’s fees, incurred in making the Motion to Compel.  However, Judge Martin also said this:

“Finally, although Defendants are entitled to the previously produced documents in native form, the Court clarifies that they are not entitled to all metadata. Some of Defendants’ filings could be interpreted to argue that Defendants are entitled to all metadata related to the documents previously produced. In general, metadata must be specifically requested in advance, and Defendants did not do that…While production in native format will inevitably result in the exchange of some metadata, Defendants are not entitled to all metadata generally, except to the extent it appears with the documents as kept in the usual course of business.”

Hmmm…

So, what do you think?  Should metadata be requested in advance or does the request for “responsive documents in the form in which they are maintained in the usual course of business” assume the inclusion of metadata (assuming that involves production of native format documents)?  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 Fall! Has eDiscovery Business Confidence Fallen?: eDiscovery Trends

The Complex Discovery eDiscovery Business Confidence Survey is in the last quarter of its third year and the results are in for the Fall 2018 eDiscovery Business Confidence Survey!  As was the case for the 2016 Winter, Spring, Summer and Fall surveys, the 2017 Winter, Spring, Summer and Fall surveys and the 2018 Winter, Spring and Summer surveys, the results for the Fall survey are published on Rob Robinson’s terrific Complex Discovery site.  How confident are individuals working in the eDiscovery ecosystem in the business of eDiscovery?  Let’s see.

As always, Rob provides a complete breakdown of the latest survey results, which you can check out here.  As I’ve done for the past few surveys, I will provide some analysis and, this year, I’ll take a look at all surveys conducted to look at trends over time.  So, this time, I will look at the results for all twelve surveys to date.

The Fall 2018 Survey response period was initiated in early October and continued until registration of 85 responses by the beginning of this week.  As Rob notes, this limiting of responders to 85 individuals is a change from previous surveys and reflective of an adjusted survey participant listing based on GDPR implementation by Complex Discovery and sensitivity to the increasing number of industry surveys.

As Usual, Providers are the Largest Group of Responses: Software and/or Services Provider respondents stayed on top, accounting for 37.6% of all respondents.  Law Firm respondents were close behind at 35.3% and Consultancy respondents were again third at 17.6%.  So, once again, if you count law firms as providers (they’re technically both providers and consumers), this is a very provider heavy survey with 90.6% of total respondents.  Here’s a graphical representation of the trend over the twelve surveys to date:

Not surprisingly, this is another provider heavy survey.  So, how confident are providers in eDiscovery business confidence?  See below.

Over 62 Percent of Respondents Consider Business to Be Good: Now that’s a bounce back!  This time, 62.4% of respondents considered business to be good, over 9% (9.2%, to be exact) more than the 53% we had last quarter.  And, 7.4% more than last Fall (55%).  Only 3.5% of respondents rated business conditions as bad, a record low!  Last Fall, it was 5.5% higher (9%).  So, current business conditions appear to be strong, based on the respondents’ results.  Here is the trend over the twelve surveys to date:

So, how good do respondents expect business to be in six months?  See below.

However, Revenue and Profit Expectations Are Mixed: While nearly all respondents (96.5%) expect business conditions will be in their segment to be the same or better six months from now (one percentage point better than last quarter’s 95.5%), but the percentage expecting business to be better dropped to 44.7%.  Revenue (at combined 94.1% for the same or better) is 1.7 points higher than the last quarter.  Profit expectations (combined 87.1%) dropped nearly a point from last quarter, but with those expecting higher profits dropping another 4.3 points from last quarter (which was already a 7.5 point drop from the previous quarter).  And, the percentage of those expecting higher profits is lower than than either of the last two years during the Fall.  Here is the profits trend over the twelve surveys to date:

Still, the overall profit sentiment average is stronger than the past two years, for what that’s worth.

Increasing Types of Data Considered to Be Most Impactful to eDiscovery Business: For only the second time, Increasing Types of Data was top impactful factor to the business of eDiscovery at 20%.  Increasing Volumes of Data was second at 18.8%, followed by Lack of Personnel at 17.6% and then Data Security at 15.3%.  Amazingly, Budgetary Constraints and Inadequate Technology brought up the rear at 14.1% (which was the lowest ever result for Budgetary Constraints by far – and it’s budget season!).  The graph below illustrates the distribution over the twelve surveys to date:

With all of the emphasis on various data sources, it’s not surprising that increasing types of data is trending upward over the past few quarters.

Executive Leadership is still, um, the Leader: The Executive Leadership respondents were on top again at 41.2%. Operational Management respondents were second at 30.6% and Tactical Execution respondents brought up the rear at 28.2% (still higher than last time).  Here’s the breakdown over the twelve surveys to date:

The variance in distribution continues each quarter, demonstrating that it’s not the same people giving the same answers each time.

Again, Rob has published the results on his site here, which shows responses to additional questions not referenced here (including three brand new questions asked for the first time!).  Check them out.

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  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.

The Only Thing We Have to Fear is eDiscovery Itself: eDiscovery Horrors!

As indicated by our friend “Jack”, today is Halloween!  This is our ninth(!) year to identify stories to try to “scare” you with tales of eDiscovery and cybersecurity horrors because we are, after all, an eDiscovery blog.  Let’s see how we do this year.  Michael Myers ain’t got nothing on us!

Does this scare you?

Did you know you could receive a bad faith sanction for your employees’ failure to follow your preservation policy?

What about this?

Here’s why you probably don’t want to murder someone wearing a Fitbit.  Or somebody you met on Tinder.

Or this?

You know your eDiscovery violations are bad when the order discussing them is so large, it needs a table of contents.  We’ll be discussing this one today!

How about this?

When does Twitter not have possession and control of its own direct messages?  Find out here.

Or maybe this?

More than two-thirds of data breaches take months to discover.

Have you considered this?

Here’s how a dead person’s finger can be an investigative tool.

Finally, how about this?

When the court is too busy to perform an in camera review of the defendant’s documents deemed privileged, it will just let the plaintiff have a “quick peek” at them.

Scary, huh?  If the possibility of sanctions, getting arrested for murder due to evidence from Internet of Things (IoT) devices (serves you right!), data breaches and dead fingers opening iPhones scares you, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Of course, if you seriously want to get into the spirit of Halloween and be scared, check out this video.  You won’t be able to “lego” of it!

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

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’s Webcast Will Help You Get a “Clue” Regarding Your eDiscovery Process: eDiscovery Webcasts

Why am I promoting our monthly webcast today instead of the actual day of the webcast (like I usually do)?  You’ll see tomorrow when we publish our ninth(!) annual Halloween list of eDiscovery “frights”.  Do you scare easily?  Then, don’t read tomorrow’s post!  :o)

As evidenced by some high-profile recent eDiscovery disasters, managing eDiscovery projects is more complex than ever. Not only have the volume and variability of ESI data sources increased dramatically, but there are often more stakeholders in eDiscovery projects today than characters on the board game Clue©. Successful eDiscovery today means not only meeting your obligations, but also making sure that each stakeholder in the process succeeds as well.  Tomorrow’s webcast can enable you to get a “clue” regarding your eDiscovery process – with a special guest!

Tomorrow at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Get a “Clue” Regarding Your eDiscovery Process. In this one-hour webcast that’s CLE-approved in selected states, we will discuss the various participants in the eDiscovery process, what motivates each of them, and best practices on how to avoid becoming the next high-profile eDiscovery disaster. Topics include:

  • The Process: Managing the Project from Initiation to Close
  • The Phases: Managing the Flow of ESI Before and During the Process
  • The Players: Goals and Objectives of Each eDiscovery Stakeholder
  • Whodunnit?: Lessons Learned from a Large Financial Institution’s Mistakes
  • Whodunnit?: Lessons Learned from a Government Entity’s Mistakes
  • Whodunnit?: Lessons Learned from a Medical Center’s Mistakes
  • Recommendations for Avoiding Your Own Mistakes
  • Resources for More Information

I’ll be presenting the webcast, along with Tom O’Connor as always.  But, this time, we will have a special guest — Mike Quartararo!  Mike is the founder and managing director of eDPM Advisory Services, a consulting firm providing e-discovery, project management and legal technology professional services to law firms, corporate legal departments and service provider organizations. He is also the author of the 2016 book Project Management in Electronic Discovery, which merges project management principles and best practices in electronic discovery.

To register for the webcast, 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).  Three guys with beards on the Wolfman’s favorite day, what could be better!

So, what do you think?  Do you have a “clue” about how to avoid your own eDiscovery disaster?  If not, 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.

Clue Board Game Image Copyright © Hasbro

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.

Mike Q Says the Weakest Link in TAR is Humans: eDiscovery Best Practices

We started the week with a post from Tom O’Connor (his final post in his eDiscovery Project Management from Both Sides series).  And, we’re ending the week covering an article from Mike Quartararo on Technology Assisted Review (TAR).  You would think we were inadvertently promoting our webcast next week or something.  :o)

Remember The Weakest Link? That was the early 2000’s game show with the sharp-tongued British hostess (Anne Robinson) telling contestants that were eliminated “You are the weakest link.  Goodbye!”  Anyway, in Above the Law (Are Humans The Weak Link In Technology-Assisted Review?), Mike takes a look at the debate as to which tool is the superior tool for conducting TAR and notes the lack of scientific studies that point to any particular TAR software or algorithm being dramatically better or, more importantly, significantly more accurate, than any other.  So, if it’s not the tool that determines the success or failure of a TAR project, what is it?  Mike says when TAR has problems, it’s because of the people.

Of course, Mike knows quite a bit about TAR.  He’s managed his “share of” of projects, has used “various flavors of TAR” and notes that “none of them are perfect and not all of them exceed all expectations in all circumstances”.  Mike has also been associated with the EDRM TAR project (which we covered earlier this year here) for two years as a team leader, working with others to draft proposed standards.

When it comes to observations about TAR that everyone should be able to agree on, Mike identifies three: 1) that TAR is not Artificial Intelligence, just “machine learning – nothing more, nothing less”, 2) that TAR technology works and “TAR applications effectively analyze, categorize, and rank text-based documents”, and 3) “using a TAR application — any TAR application — saves time and money and results in a reasonable and proportional outcome.”  Seems logical to me.

So, when TAR doesn’t work, “the blame may fairly be placed at the feet (and in the minds) of humans.”  We train the software by categorizing the training documents, we operate the software, we analyze the outcome.  So, it’s our fault.

Last month, we covered this case where the plaintiffs successfully requested additional time for discovery when defendant United Airlines, using TAR to manage its review process, produced 3.5 million documents.  However, sampling by the plaintiffs (and later confirmed by United) found that the production contained only 600,000 documents that were responsive to their requests (about 17% of the total production).  That seems like a far less than ideal TAR result to me.  Was that because of human failure?  Perhaps, when it comes down to it, the success of TAR being dependent on humans points us back to the long-used phrase regarding humans and computers: Garbage In, Garbage Out.

So, what do you think?  Should TAR be considered Artificial Intelligence?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © British Broadcasting Corporation

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 Terrific Scorecard for Mobile Evidence Discovery: eDiscovery Best Practices

As we’ve noted before, eDiscovery isn’t just about discovery of emails and office documents anymore.  There are so many sources of data these days that legal professionals have to account for and millions more being transmitted over the internet every minute, much of which is being transmitted and managed via mobile devices.  Now, here’s a terrific new Mobile Evidence Burden and Relevance Scorecard, courtesy of Craig Ball!

Craig has had a lot to say in the past about mobile device preservation and collection, even going as far as to say that failure to advise clients to preserve relevant and unique mobile data when under a preservation duty is committing malpractice.  To help lawyers avoid that fate, Craig has described a simple, scalable approach for custodian-directed preservation of iPhone data.

Craig’s latest post (Mobile to the Mainstream, PDF article here) “looks at simple, low-cost approaches to getting relevant and responsive mobile data into a standard e-discovery review workflow” as only Craig can.  But, Craig also “offers a Mobile Evidence Scorecard designed to start a dialogue leading to a consensus about what forms of mobile content should be routinely collected and reviewed in e-discovery, without the need for digital forensic examination.”

It’s that scorecard – and Craig’s discussion of it – that is really cool.  Craig breaks down various types of mobile data (e.g., Files, Photos, Messages, Phone Call History, Browser History, etc.) in terms of Ease of Collection and Ease of Review (Easy, Moderate or Difficult), Potential Relevance (Frequent, Case Specific or Rare) and whether or not you would Routinely Collect (Yes, No or Maybe).  Believe it or not, Craig states that you would routinely collect almost half (7 out of 16 marked as “Yes”, 2 more marked as “Maybe”) of the file types.  While the examples are specific to the iPhone (which I think is used most by legal professionals), the concepts apply to Android and other mobile devices as well.

I won’t steal Craig’s thunder here; instead, I’ll direct you to his post here so that you can check it out yourself.  This scorecard can serve as a handy guide for what lawyers should expect for mobile device collection in their cases.  Obviously, it depends on the lawyer and the type of case in which they’re involved, but it’s still a good general reference guide.

So, what do you think?  Do you routinely collect data from mobile devices for your cases?  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 Rejects Plaintiffs’ “Mindlessly Deficient” Objections to Native Format Production: eDiscovery Case Law

In McDonnel Grp., LLC v. Starr Surplus Lines Ins. Co. et al., No. 18-1380 (E.D. La. Oct. 3, 2018), Louisiana Magistrate Judge Joseph C. Wilkinson, Jr. granted in part and denied in part the defendants’ motion to compel, granting the defendants’ requests for the plaintiffs to produce construction schedules in native format, to identify responsive materials already produced to other specified defendants’ requests and to provide a privilege log for any documents withheld based on privilege to those requests.  Judge Wilkinson denied the defendants’ request for attorney’s fees and other expenses incurred in connection with the defendants’ motion.

Case Background

In this dispute between a general construction contractor and its insurers, the defendants sought production of construction schedules in native format, but the plaintiff asserted that it had produced all responsive materials in PDF format, even though the defendants specified production of “all construction schedules for the Project in their native format (as native files)”, according to Fed. R. Civ. P. 34(b)(1)(C), which provides that a requesting party “may specify the form or forms in which electronically stored information (“ESI”) is to be produced.”  As the responding party, plaintiff was required to “state with specificity the grounds for objecting to the request, including the reasons.”

Judge’s Ruling

As Judge Wilkinson noted (while erroneously referring to the plaintiff as defendants a couple of times): “In their written response to Request No. 34, defendants(sic) complied with none of these requirements. Instead of asserting specific objections or stating that it intended to produce these clearly relevant and discoverable materials in some form other than the requested native format, defendants asserted a mindlessly deficient, boilerplate, stonewalling objection that the request was ‘vague, overly broad, and not reasonably calculated to lead to the discovery of admissible evidence.’…By failing to object to production in native format, defendants(sic) waived that objection… Such information in the construction schedule context, with its frequent alterations, change orders, and time sensitive but often disturbed deadlines, is relevant. The PDF files chosen by plaintiff for production are merely pictures of the materials that do not provide metadata.”

Continuing, he wrote: “Plaintiff offers no proof that production of the requested construction schedules in native format would be unduly burdensome or expensive or that native files are not the way it ordinarily maintains the construction schedules. Instead, it relies upon Rule 34(b)(2)(E)(iii), which provides that “[a] party need not produce the same electronically stored information in more than one form.” Plaintiff dispossessed itself of this protection when it failed to object to production of its native files in its written response or state in its written response that it would produce all requested materials in PDF form, as required in Rule 34(b)(2)(D). To permit a responding party, in the face of a request that ESI be produced in a particular form, arbitrarily to choose some other form, would disrupt and undermine the orderly request/response/objection/confer structure and requirements of the remainder of the Rule concerning ESI. For these reasons, the motion is granted as to Request No. 34. Plaintiff must produce all native files sought in this request, together with a new written response, signed pursuant to Fed. R. Civ. P. 26(g), clearly stating that it has done so.”

Judge Wilkinson also classified the plaintiff’s written responses to other requests as “deficient” and ordered the plaintiff to “provide new written responses to these requests, clearly stating that it has produced all non-privileged responsive materials in its possession, custody or control, signed pursuant to Fed. R. Civ. P. 26(g), and identify those responsive materials by Bates number or other specific identifier. If plaintiff is withholding any materials responsive to these requests on privilege or work product grounds, it must provide the log required by Fed. R. Civ. P. 26(b)(5).”  However, Judge Wilkinson denied the defendants’ request for attorney fees and other expenses incurred in connection with the defendants’ motion.

So, what do you think?  Should failure to provide specific objections to form of production requests automatically waive those objections?  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 is the Day to “Master” Your Knowledge of eDiscovery in Washington DC for 2018: eDiscovery Trends

It’s here!  Today is the start of the The Master’s Conference DC event!  It’s almost two days of educational sessions covering a wide range of topics!  If you’re in the DC area, it’s not too late to attend!

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 Washington DC event includes nearly two days of educational sessions covers topics ranging from privacy to cybersecurity to social media to cloud computing.  GDPR, blockchain and big data are also significant topics for the event.

The event is being held today and tomorrow at Sidley Austin LLP, 1501 K Street, N.W. #600, Washington, DC 20005.  It’s about three blocks away from the White House.  Registration begins at 8am each day, 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 11:15pm tomorrow.  I will be moderating a panel of eDiscovery experts that includes Mike Quartararo, Founder and Managing director of eDPM Advisory Services and author of the 2016 book Project Management in Electronic Discovery; Robert D. Keeling, Partner with Sidley Austin and an experienced litigator whose practice includes a special focus on electronic discovery matters; and Mimi Singh, General Counsel and Director of Consulting at Sandline Discovery, who has over thirteen years of eDiscovery legal counseling experience.  We will be discussing the challenges that big data place 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 $250 for nearly two days of terrific educational content.  So, if you plan to attend and haven’t registered yet (why not?), now is the time to do it.

This year, The Master’s Conference still has one more event scheduled for Orlando.  Click here for more information on remaining scheduled events for the year.

So, what do you think?  Are you going to be in Washington DC today and tomorrow?  If so, come join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

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