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Electronic Discovery

eDiscovery Project Management from Both Sides: eDiscovery Best Practices, Part Three

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, Preparing for Litigation Before it Happens, which we covered as a webcast on September 26.  Now, Tom has written another terrific overview regarding pre-litigation considerations titled eDiscovery Project Management from Both Sides that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was covered on Monday and part two was covered on Wednesday.  Here’s the third part.

The Lawyer’s Perspective to Project Management

What do lawyers think about this PM discussion? Do they think about it all? First let’s consider what they want from their ED project. Well that’s easy. They want to win their case.

And they want to adequately anticipate and minimize costs while they are winning. As Mike puts it “Clients expect not just cost predictability, but also cost containment.”

Mark Cohen, well known legal commentator and founder of legal delivery consultancy, Legal Mosaic, has been talking about this process for a number of years. In his article 7 Things Lawyers Should Know About Project Management, he defined Project Management as “the application of knowledge, skills and techniques to execute projects effectively and efficiently. It is considered a strategic competency for organizations, enabling them to tie project results to business goals — and thus, better compete in their markets. In its simplest form, Project Management defines the desired result, methodically structures the work into manageable pieces, and provides a framework of business and technology processes to achieve the result efficiently and economically.”

Mark also clearly differentiated PM from delivering a matter for a set price, which he felt was not only has a narrower definition than PM but also is a strategy not well suited to the many changes which often occur in an ESI project. These “unexpected turns”, as Mark calls them, a matter can take are better handled by a change order written into the PM Statement of Work/Engagement Letter.

Marks final thoughts were a nod to the global isolation of the US legal market in working with non-lawyers. He said: “Lawyers should familiarize themselves with project management skills because, without them, they may ultimately find non-lawyers taking charge of integrating and delivery their services, thereby reducing lawyers to a more marginal role in the overall process.”

Another consultant who has advocated PM for many years is Dennis Kennedy, a well-known legal tech commentator who recently retired as VP & Senior Counsel of Digital Payment and Labs at Master Card and is now an adjunct professor of law at Michigan State U School of Law. I clearly remember a 2010 podcast Dennis did with Tom Mighell on the Legal Talk Network called Lawyers as Project Managers, and remember thinking at the time that he was well ahead of the curve on the subject.

More recently, he was a member of a panel discussing PM published by Law Technology Today called Defining Legal Project Management.  In that discussion, Dennis, much like Mike Quartararo, felt that legal PM is based on general PM principles.

But Dennis went one step further saying:

“Lawyers tend to think that everything they do is unique and special. Other than existing in the legal context, I don’t see legal project management as being anything different than general project management.”

He did feel that trained PM managers were a plus because:

“most lawyers don’t learn project management techniques, the results can be hit or miss. You have to know your strengths and weaknesses. I’d want to hire a project manager. You might want to take on that role yourself. You need to take a hard and realistic look at yourself.”

Either way, he did feel that PM is:

“not a fad at all. I see it as a very important trend to watch. Certain clients will start to insist on lawyers using project management and other standard business workflow and process tools.”

He and his fellow panelists pointed to some excellent PM resources for lawyers including the Corporate Legal Operations Consortium, the ABA’s Law Practice Division Legal Project Management Interest Group, the Association of Corporate Counsel Legal Operations, Legal Marketing Association’s P3 Practice Innovation Conference, the True Value Partnering Institute, and the Law Vision Group LPM Roundtable.

We’ll publish Part 4 – Conclusion – next Monday.

So, what do you think?  How does your organization apply project management to your eDiscovery projects?  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 “No Harm, No Foul” in Allowing Clawback After Protective Order Deadline: eDiscovery Case Law

In the case In re Abilify (Aripiprazole) Prod. Liab. Litig., No. 3:16-md-2734 (N.D. Fla. Sept. 17, 2018), Florida Magistrate Judge Gary R. Jones denied the plaintiff’s Disclosure Motion regarding two documents that defendant Bristol-Myers Squibb (BMS) claimed were privileged and inadvertently disclosed, stating that “[a]lthough BMS might not have followed the precise terms of the Protective Order”, “the one-day delay in sending the privilege log can charitably be described as a situation where the expression ‘no harm, no foul’ applies.”

Case Background

In this products liability case against pharmaceutical manufacturers, the plaintiffs’ used an internal BMS email and PowerPoint during the January 31, 2018, deposition of BMS’ executive director for Abilify marketing from February 2007-December 2008. The PowerPoint discussed, among other things, BMS’ Corporate Integrity Agreement (“CIA”).  During the deposition, BMS’ counsel objected on the grounds that the use of the PowerPoint contained “privileged . . . confidential information [that] was inadvertently produced, in particular the section that was drafted by and presented by legal.” BMS’ counsel expressly advised the plaintiffs before the conclusion of the deposition that they would be “exercising our clawback rights under our protective order.”

After the deposition was concluded BMS sent an email to the plaintiffs confirming their intent to claw back the email and PowerPoint as inadvertently produced.  While the email did not mention attorney-client privilege and did not contain a privilege log, BMS sent the plaintiffs a notice and associated privilege log on February 5 articulating the basis for clawing back the redacted email and PowerPoint attachment. BMS then produced redacted, replacement versions of the email and PowerPoint.  The plaintiffs claimed that BMS waived privilege because they failed to provide a written notice within two business days from the date of the deposition accompanied by a log articulating the privilege basis for the documents and also argued that the redacted portions of the documents were not privileged because the documents did not convey legal advice.

Judge’s Ruling

Evaluating the plaintiffs’ Disclosure Motion, Judge Jones stated: “Plaintiffs’ argument on timeliness fails for two reasons. First, as a practical matter Plaintiffs were notified at the deposition on January 31, 2018 that BMS asserted a privilege over the documents based upon the fact that a section of the PowerPoint had been prepared by and presented by an attorney. BMS reaffirmed its assertion of its rights under the clawback that same day on January 31, 2018, when it sent a confirming email to Plaintiffs. While the confirming email was not accompanied by a privilege log, there was no mystery at that point that BMS asserted a privilege and sought to claw back the document, as it was entitled to do under the Protective Order.”  While noting that the Protective Order required written notification accompanied by a privilege log within two business days on the deposition (and BMS’ second email wasn’t until the third business day), Judge Jones stated: “Although BMS might not have followed the precise terms of the Protective Order, in the Court’s view the one-day delay in sending the privilege log can charitably be described as a situation where the expression ‘no harm, no foul’ applies. Plaintiffs cannot point to any prejudice they suffered or could have suffered as a result of the receipt of a privilege log one day late, which simply confirmed the privilege timely raised by BMS at the deposition and then confirmed in writing the same day.”

Noting that BMS’ in-house counsel not only participated in the preparation of the PowerPoint, but also that the PowerPoint was part of a presentation by Senior BMS counsel made to BMS management employees, Judge Jones upheld BMS’ privilege designation of the materials and denied the plaintiffs’ Disclosure Motion.

So, what do you think?  How much leeway should be given to inadvertent disclosures when they fall outside of the parameters of a protective order?  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.

eDiscovery Project Management from Both Sides: 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, Preparing for Litigation Before it Happens, which we covered as a webcast on September 26.  Now, Tom has written another terrific overview regarding pre-litigation considerations titled eDiscovery Project Management from Both Sides that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was covered on Monday.  Here’s the second part.

The Project Manager’s Perspective to Project Management

How do project managers define their role? Well Mike sets it out on his company website when he says:

Project management is the structured application of skill, knowledge, tools and techniques to organize activities and bring about a desired outcome that meets a project or business need. While this may seem abstract, it is really quite simple: In the business world, even in a professional service field like the legal industry, there are business needs or goals that an organization may have interest in achieving. Organizations engage the person with the right skills, knowledge and talent to achieve these objectives and manage the necessary work. That person is a project manager. Project managers use their industry experience, education and training to complete tasks and the overall project work. They understand the resources, tools and workflows necessary. They are able to interact with people and organizations to perform the actual work. But project management is not a single “thing” or practice. It is not a specific tool that one simply picks up and transposes over the work in a particular industry. Rather, it is an operational theory and series of practices; a way of thinking; a methodical, disciplined approach to outcome-oriented work. There are principles, defined practices, tools and techniques involved, but more than any one thing, project management is an organizational tool. It is a framework that facilitates efficiency, quality, cost, and risk containment. Project management in the context of legal support also involves leadership of people…

He then goes on to offer some useful definitions, including:

  • Project: A temporary, non-routine endeavor limited by scope, time, and cost that creates a unique product, service, or result.
  • Project management: The structured application of skill, knowledge, tools, and techniques to organize project activities designed to efficiently bring about a desired outcome.
  • Project manager: The person possessing the applicable skill, knowledge, and talent, who is assigned by an organization and responsible for actively managing the project.
  • Process: The discreet steps, actions, or operations one takes to achieve project objectives, the tools used, and an understanding of what each part of a project will look.

But perhaps most important is that Mike feels quite strongly that “eDiscovery PM comes only after you have a firm grounding in general project management principles. Those principles are ideally suited to a project which has repetitive and dependent tasks, a variety of people and organizations involved and the need to better manage scope, timing, and costs.” ( https://www.relativity.com/blog/the-anatomy-of-project-management/ , August 29, 2016).

Which of these principles can we use in eDiscovery?  I’d suggest the following points made by Mike as being the most critical:

  1. Cost: The ability to estimate, budget, and manage the costs of the project.
  2. Scope: What Mike calls “What does done look like?”
  3. Time: The Project Management Lifecycle to avoid missed deadlines and fragmented schedules which lead to added cost
  4. Tools & Techniques: What tools are required, including written protocols or best practices?
  5. Output: requirements during and at the conclusion of an ESI project

I should note that Mike goes into even more detail when discussing the Project Management Lifecycle. He breaks the lifecycle down into five Project Management Process Groups. He describes this as a framework which he describes in this graphic:

Mike also goes on to say that the lifecycle does not end here. Within each process group there are areas of responsibility that a project manager must focus on throughout a project.

Known as the Knowledge Areas, these are the core process elements in each of the five process groups:

  • Integration management
  • Human resource management
  • Scope management
  • Communication management
  • Time management
  • Risk management
  • Cost management
  • Procurement management
  • Quality management
  • Stakeholder management

All of these provide a framework for the project manager to estimate, budget, and manage a project. And these traditional project management methodologies work equally well in the e-discovery context. As Mike said in the blog post quoted above, “Doing things like planning, communicating, setting clear expectations, figuring out what ‘done’ looks like, [are] just a sensible means of approaching litigation and e-discovery in particular,”

We’ll publish Part 3 – The Lawyer’s Perspective to Project Management – on Friday.

So, what do you think?  How does your organization apply project management to your eDiscovery projects?  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.

Judge Recommends Sanctions for Defendant Under FRCP 37(e)(1): eDiscovery Case Law

In Franklin v. Howard Brown Health Ctr., No. 17 C 8376 (N.D. Ill. Oct. 4, 2018), the Illinois Magistrate Judge, stating that “the defendant has had to concede that, at the very least, it bollixed its litigation hold – and it has done so to a staggering degree and at every turn”, recommended that the plaintiff’s motion for discovery sanctions be granted to the extent that the “parties be allowed to present evidence and argument to the jury regarding the defendant’s destruction/failure to preserve electronic evidence in this case”.

Case Background

In this case for workplace harassment and discrimination, this particular dispute began with the plaintiff’s document request, which required the defendant to produce emails and text messages exchanged between certain key parties involving the plaintiff.  The defendant referred plaintiff to a number of “emails” already produced, but the plaintiff was looking for “instant messages,” as this was the method the plaintiff alleged the individuals used to harass him, but the defendant produced only two of those, despite the fact that deposition testimony indicated that was the standard way employees communicated with one another and one of the key parties said he saved “instant messages” to his Outlook email folder (despite the defendant’s claims that they weren’t as a matter of course).

According to the plaintiff’s supervisor, the plaintiff specifically promised a lawsuit based on “racism, transphobia and sexism” among the staff as early as July 24, 2015, but the defendant’s attorney categorized that as a “vague threat”.  One of the plaintiff’s alleged harassers left the company a mere two days after that, but his computer was wiped within 7 days of his last day at work.  According to the defendant’s general counsel, the litigation hold was not instituted until August 28, 2015.  In the GC’s affidavit, she indicated that he instructed an IT administrator to remove the plaintiff’s computer from the wiping process, but apparently never followed up or looked at the computer (that IT administrator had also left the company and was also now suing the defendant) and that data was lost as well.  The defendant’s GC also never instructed anyone in the IT department to stop the auto-delete of any saved instant messages – as a result, “barely a handful” of them were produced.

Judge’s Ruling

Noting that the “failure to preserve electronic evidence is covered by Fed.R.Civ.P. 37(e)”, the Magistrate Judge said that “In the end, given at least what appears to be the defendant’s gross negligence – and that’s viewing things favorably to the defendant – the best route is that proposed by the Advisory Committee in its notes to the 2015 amendment to Fed.R.Civ.P. 37(e)(1), specifically, allowing the parties to present evidence to the jury regarding the situation that was caused by defendant’s faulty and failed litigation hold… Accordingly, it is recommended that parties be allowed to present evidence and argument to the jury regarding the defendant’s destruction/failure to preserve electronic evidence in this case, and that the jury be instructed as the trial judge deems appropriate.”

So, what do you think?  Is the recommendation an appropriate application of FRCP 37(e)(1)?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Also, it’s time for the Fall 2018 eDiscovery Business Confidence Survey on Rob Robinson’s Complex Discovery site.  This quarter’s survey is unique in the fact that it asks three additional questions beyond the standard nine business confidence questions asked during the previous eleven surveys. These new questions are focused on understanding operational business trajectories around the areas of days sales outstanding (DSO), monthly recurring revenue (MRR), and revenue distribution across customer bases.  The response period is between today and achievement of 66 responses or November 30, 2018 (whichever comes first).  66 is not a lot of responses, so you’ll want to get your response in quickly!  We’ll cover the results once they’re published.

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.

eDiscovery Project Management from Both Sides: 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, Preparing for Litigation Before it Happens, which we covered as a webcast on September 26.  Now, Tom has written another terrific overview regarding pre-litigation considerations titled eDiscovery Project Management from Both Sides that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

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

Introduction

I’m going to show my age now and quote an old Joni Mitchell song:

I’ve looked at clouds from both sides now
From up and down and still somehow
It’s cloud’s illusions I recall
I really don’t know clouds at all

That’s how I feel about Project Management, which we’ll refer to as PM for the remainder of this article. PM has been a major topic at trade shows recently, especially when Mike Quartararo is speaking. Why?

Well first because Mike’s discussions on how to handle PM are thoughtful and comprehensive. He is a graduate of the State University of New York, after which he studied law for one year at the University of London. He is a certified Project Management Professional (PMP) and a Certified E-Discovery Specialist (CEDS).  And he was the Director of Litigation Support at Stroock & Stroock & Lavan LLP in New York for 10 years.  Now, Mike has his own consultancy practice at eDPM Advisory Services.

And perhaps most important, Mike has literally written the book on the subject. It is called Project Management in Electronic Discovery: An Introduction to Core Principles of Legal Project Management and Leadership In eDiscovery and is available on his web site, www.eDiscoveryPM.com (and also on Amazon here).

But after listening to Mike speak at the recent ILTACON18 conference, Doug Austin mentioned to me that it seemed there is another side to PM that is being ignored, that of the lawyer’s opinion on the subject.  Since discovery is the most time-consuming and expensive aspect of litigation, managing it effectively is always a concern of the lawyers but we seldom hear what they think of all the talk about PM. So, let’s look at the issue from both sides now.

We’ll explore the implementation of eDiscovery project management from both sides, as follows:

  1. The Project Manager’s Perspective to Project Management
  2. The Lawyer’s Perspective to Project Management
  3. Conclusion

We’ll publish Part 2 – The Project Manager’s Perspective to Project Management – on Wednesday.

So, what do you think?  How does your organization apply project management to your eDiscovery projects?  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 Plays Referee in Search Term Dispute Between Parties: eDiscovery Case Law

In Digital Ally, Inc. v. Taser Int’l, Inc., No. 16-cv-2032-CM-TJJ (D. Kan. Sept. 11, 2018), Kansas Magistrate Judge Teresa J. James granted in part and denied in part the defendant’s Motion to Compel ESI Discovery, sustaining in part the plaintiff’s overbreadth and relevance objections to specific defendant ESI Requests by providing a compromised scope between the defendant’s proposed searches (deemed to be overbroad) and the plaintiff’s proposed searches (most of which were deemed to be too narrow).

Case Background

In this patent infringement case, the parties agreed to limit each party’s email production requests to five custodians and to a total of five search terms per custodian per party.  The parties could not come to an agreement on the scope for four of the five search term Requests in Defendant’s Second Set of Requests for E-Mail Production for the plaintiff’s Chief Financial Officer.  The parties subsequently conferred and exchanged proposed revisions to the defendant’s ESI requests. Unable to reach an agreement, the defendant filed the instant motion, to which the plaintiff objected, citing that the terms proposed by the defendant were overbroad.

Judge’s Ruling

In each of the four disputed ESI requests, Judge James sustained the plaintiff’s overbreadth objection, but also rejected or modified the plaintiff suggested term in most cases as too narrow.  Here are the rulings on the four requests:

Request 2:

Defendant proposed:

“Compet!” and (“vievu” or “Safariland” or “watchguard” or “(watch /2 guard)” or “WG” or “ICOP” or “20!” or “vault” or “ivault” or “wireless” or “(wc /2 1000)” or “(wc /2 2000)” or “WMIC” or “MIC” or “extreme” or “TACOM” or “(signal! /2 device)” or “SPPM” or “flex” or “fleet” or “DVM” or “FirstVu” or “microvu” or “vulink” or “FleetVu” or “trigger” or “(auto /2 activat!)” or “strateg!” or “evidenc!” or “hardware” or “software” or “cloud” or “system” or “(law /2 enforcement)” or “military” or “advantage!” or “success!” or “fail!” or “win!” or “los!” or “bid” or “rfp” or “bundl!”)

Plaintiff proposed:

“Compet!” and (“vievu” or “Safariland” or “watchguard” or “(watch /2 guard)” or “WG”)

Judge James ruled: “Defendant’s ESI Request 2 shall be limited insofar as Plaintiff shall not be required to search CFO Heckman’s ESI for the term “Compet!” combined with any of the following other commonly used words: “extreme,” “trigger,” “strateg!,” “evidenc!,” “hardware,” “software” or “cloud” or “system” or “advantage!” or “success!” or “fail!” or “win!” or “los!” or “bid” or “rfp” or “bundl!””

Request 3:

Defendant proposed:

“Invest!” or “shareholder!” or “stock!” or “Roth” or “Gibson” or “Truelock” or “Searle” or “Fortress” or “FIG” or “Palmer” or “Shtein” or “Eriksmith” or “Aegis” or “Lubitz” or “Rockowitz” or “Fidelity”) AND (“acqui!” or “financ!” or “secur!” or “monet!” or “loan!” or “offer!” or “merg!” or “buy” or “sell” or “valuation!” or “patent!” or “licens!”)

Plaintiff proposed:

(“Invest!” or “shareholder!” or “stock!” or “Roth” or “Gibson” or “Truelock” or “Searle” or “Fortress” or “FIG” or “Palmer” or “Shtein” or “Eriksmith” or “Aegis” or “Lubitz” or “Rockowitz” or “Fidelity”) AND (“vulink” or “DVM” or “FirstVu” or “microvu” or “FleetVu”)

Judge James ruled: “The Court finds Plaintiff’s counterproposal is too restrictive of the terms following the “AND” in Request 3. Instead the Court will limit Request 3 to the following search-term combinations:

(“Roth” or “Gibson” or “Truelock” or “Searle” or “Fortress” or “FIG” or “Palmer” or “Shtein” or “Eriksmith” or “Aegis” or “Lubitz” or “Rockowitz” or “Fidelity”) AND (“acqui!” or “financ!” or “secur!” or “monet!” or “loan!” or “offer!” or “merg!” or “buy” or “sell” or “valuation!” or “patent!” or “licens!”).”

Request 4:

Defendant proposed:

(“cam!” or “!cam” or “product” or “vault” or “ivault” or “DVM” or “FirstVu” or “microvu” or “vulink” or “FleetVu” or “trigger” or “(auto /2 activat!)” or “bundl!”) AND (“financ!” or “net” or “revenue!” or “cost!” or “profit!” or “margin!” or “sale!” or “sell!” or “sold” or “royalt!” or “licens!” or “unit!” or “period” or “quarter” or “annual” or “monet!” or “balance” or “income” or “cash!”)

Plaintiff proposed:

“DVM” or “FirstVu” or “microvu” or “vulink” or “FleetVu” or “VuVault” AND (“financ!” or “net” or “revenue!” or “cost!” or “profit!” or “margin!” or “sale!” or “sell!” or “sold” or “unit!” or “period” or “quarter” or “annual” or “monet!” or “balance” or “income” or “cash!”)

Judge James ruled: “The Court sustains Plaintiff’s overbreadth objections to Defendant’s ESI Request 4 for the terms “product” and “bundl!” combined with generic and commonly used finance and business search terms after the “AND.” The Court finds these search-term combinations are overly broad and Plaintiff shall not be required to search its CFO’s ESI using these search-term combinations. The Court rejects Plaintiff’s counterproposal, but modifies Defendant’s ESI Request 4 so that Plaintiff shall not be required to search Heckman’s ESI for the terms “product” or “bundl!” combined with any terms after the “AND.””

Request 5:

Defendant proposed:

“Patent!” AND (“Cam!” or “!Cam” or “(auto /2 activat!)” or “compet!” or “strateg!” or “(auto /2 activat!)” or “auto-activat!” or “automatic-activat!” or “automatically-activat!” or “auto! activat!” or “9,253,452” or “9253452” or “452” or “vulink”)

Plaintiff: Objected to the proposed connector terms “cam!,” “compet!,” and “strategy”, arguing that the “cam!” term would capture any patent about camera, which was far broader than the subject matter of this case and argued the terms “compet!” and “strategy” would return any email mentioning patents and competition or strategy of any type.

Sustaining the plaintiff’s objections that the defendant’s request was overbroad, Judge James ruled: “Defendant’s Request 5 shall be limited to the following search-term combinations:

“Patent!” AND (“(auto /2 activat!)” or “(auto /2 activat!)” or “auto-activat!” or “automatic-activat!” or “automatically-activat!” or “auto! activat!” or “9,253,452” or “9253452” or “452” or “vulink”)”

So, what do you think?  When should courts step in and rule on search term disputes between parties?  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.

IoT Devices Lead to Suspect’s Arrest for Murder: eDiscovery Trends

Honestly, I don’t know why anyone would consider committing a violent crime these days.  There’s the use of ever-improving DNA technology that leads to the arrest of scores of alleged offenders each year – even if you’re not in the Combined DNA Index System (CODIS) database, you can still be identified as a suspect through your relatives via genealogy databases, as we’ve recently seen in the case of the Golden State Killer.  And, if your DNA doesn’t get you, an Internet of Things (IoT) device may, as evidenced in this case.

As reported by CNET (Murder victim’s Fitbit data leads to alleged killer’s arrest, written by Steven Musil), Karen Navarra’s Fitbit recorded a rapid rise in her heart rate before a sudden drop-off to nothing, offering San Jose police a clearer time frame of her death on Sept. 8, the San Francisco Chronicle reported Friday. 90-year-old Tony Aiello was arrested last month in connection with his 67-year-old stepdaughter’s death.

Investigators noticed Navarra was wearing a Fitbit and they turned to the company for any possible clues the device could provide. Police learned that Navarra’s heart rate spiked at 3:20 p.m. and stopped registering a heartbeat eight minutes later, the Chronicle reported.

Although Aiello has reportedly denied killing Navarra, nearby cameras captured images of Aiello’s car parked at Navarra’s home on Sept. 8 at the same time her Fitbit showed her heartbeat rapidly falling and stopping, the newspaper reported.

Of course, those “nearby cameras” could themselves be IoT devices (Ring doorbell, anybody?).  And, we covered a different case last year regarding the Fitbit of a murder victim that helped disprove her husband’s story regarding an “intruder” that he said shot her to death – that evidence helped lead to his arrest for her murder.  In another case covered on 48 Hours recently, a Wisconsin man’s Fitbit exonerated him of his girlfriend’s 2016 murder when it showed his movements during the time police say her body was dumped in a field.  Needless to say, IoT devices are becoming more and more prominent in criminal investigations and discovery.

Changing gears here, Rob Robinson, through his terrific Complex Discovery site, is certainly the king of compilations and analysis regarding eDiscovery trends and his latest analysis involves “an aggregation of results from fourteen surveys from leading ALM magazines ranging from Corporate Counsel to Texas Lawyer administered to online audiences and published as special supplements between November 2017 and October 2018.”  Rob took the sixteen eDiscovery-centric survey categories represented in the fourteen surveys and tracked all of the providers who received at least one vote as a top three provider (101 providers in all).

Twenty-five of those providers was voted a top three provider at least six times across the fourteen surveys and Rob has ranked them by the number of times they received a top three vote.  So, which provider was voted a top three provider the most times by participants in the fourteen ALM surveys?  Click here to find out.  :o)

So, what do you think?  Have you had a case that involved evidence from an IoT device?  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.

“Master” Your Knowledge of eDiscovery With This Conference in Washington DC Again This Year: eDiscovery Trends

It’s October!  The leaves are turning, the baseball playoffs are currently going on (with the Astros one step closer to making my prediction come true again).  And, it’s time for another The Master’s Conference DC event!  It’s almost two days 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 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 will be held on Tuesday, October 23 and Wednesday, October 24 at Sidley Austin LLP, 1501 K Street, N.W. #600, Washington, DC 20005.  It’s about three blocks away from the White House (anything happening over there these days?).  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 on Wednesday, October 24th.  I will be moderating a panel of eDiscovery experts to discuss 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 on October 23 and 24?  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.

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 You Get a “Clue” Regarding Your eDiscovery Process: eDiscovery Webcasts

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.  Here’s a webcast that can enable you to get a “clue” regarding your eDiscovery process – with a special guest!

Wednesday, October 31st 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.  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!  It’s a lead pipe cinch!  Get it?  :o)

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.

Court Denies Plaintiff’s Request for Sanctions for Defendant’s Failure to Preserve Surveillance Video: eDiscovery Case Law

In Ball v. George Washington Univ., No. 17-cv-0507 (DLF) (D.D.C. Sept. 27, 2018), District of Columbia District Judge Dabney L. Friedrich, denied the plaintiff’s motion for sanctions for allegedly destroying two surveillance videos, stating: “Because Ball has not proven—even by a preponderance of the evidence—that GW permanently stored the Lafayette Hall surveillance footage, the Court need not conduct further inquiry under Rule 37(e).”

Case Background

In this case for wrongful termination, negligence and violations of rights, the defendant considered surveillance footage from two days (July 13 and 14, 2015) that showed the plaintiff entering and exiting buildings on campus, during its investigation preceding the termination of the plaintiff’s employment.  The defendant produced a July 13 video of the plaintiff in one building and produced screenshots of the July 14 surveillance footage from another building, Lafayette Hall, but it did not produce videos of Lafayette Hall for either July 13 or July 14, which reportedly showed the plaintiff entering and exiting at different times than he had indicated on his time sheet.

According to declarations, the surveillance footage was recorded on network video recorders that automatically delete old footage as the recorders become full. The video recorders that stored the July 13 and 14 Lafayette Hall footage at issue typically delete footage every 30 days (and sometimes as early as 14 days) after recording. Defendant police officers routinely permanently download surveillance footage for use in criminal investigations; however, they download surveillance footage for Human Resources (HR) investigations only upon an HR investigator’s request.

In this case, the parties disputed whether the footage at issue was downloaded: the plaintiff contended that the surveillance footage was permanently stored on CDs and given to a member of the defendant’s HR department (Claude Owens), and ultimately to the defendant’s in-house counsel, arguing that the videos’ alleged non-existence showed that the defendant’s in-house counsel destroyed or lost the videos. The defendant countered that the surveillance footage was not permanently stored but instead was automatically overwritten within 30 days (and possibly 14 days) of recording.  While Owens “thought he might have given the tape to ‘the lawyers’”, a detective with the defendant’s police force (Detective Robinson) stated in a declaration that he never downloaded the Lafayette Hall sixth floor footage and had only showed and sent screenshots to the HR employee.

Judge’s Ruling

Judge Friedrich stated: “Although the evidence before the Court is unclear, the weight of the evidence tilts in favor of GW’s explanation. Robinson’s declaration, coupled with evidence that the envelope remained sealed until Romero opened it, supports a finding that the surveillance footage of Lafayette Hall was never downloaded from the video recorders. Robinson stated that he never downloaded the Lafayette Hall sixth floor footage…And Owens testified that neither he nor Wells ever opened the sealed envelope…To the extent that the deposition testimony of Wells and Owens provides any support for Ball’s theory, the evidence is speculative and inconclusive…Because Ball has not proven—even by a preponderance of the evidence—that GW permanently stored the Lafayette Hall surveillance footage, the Court need not conduct further inquiry under Rule 37(e).”

So, what do you think?  Should the defendant have preserved the video if it was used as evidence to terminate the plaintiff’s employment?  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.