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Electronic Discovery

Plaintiffs Granted Discovery Extension Due to Defendant’s TAR Review Glitch: eDiscovery Case Law

In the case In Re Domestic Airline Travel Antitrust Litigation, MDL Docket No. 2656, Misc. No. 15-1404 (CKK), (D.D.C. Sept. 13, 2018), District of Columbia District Judge Colleen Kollar-Kotelly granted the Plaintiffs’ Motion for an Extension of Fact Discovery Deadlines (over the defendants’ objections) for six months, finding that defendant “United’s production of core documents that varied greatly from the control set in terms of the applicable standards for recall and precision and included a much larger number of non-responsive documents that was anticipated” (United’s core production of 3.5 million documents contained only 600,000 documents that were responsive).

Case Background

In the case involves a multidistrict class action litigation brought by the plaintiffs (purchasers of air passenger transportation for domestic travel) alleging that the defendant airlines willingly conspired to engage in unlawful restraint of trade, the plaintiffs filed an instant Motion for Extension of Time to Complete Discovery, requesting an extension of six months, predicated on an “issue with United’s ‘core’ document production,” asserting that defendant United produced more than 3.5 million [core] documents to the Plaintiffs, but “due to United’s technology assisted review process (‘TAR’), only approximately 17%, or 600,000, of the documents produced are responsive to Plaintiffs’ requests,” and the plaintiffs (despite having staffed their discovery review with 70 attorneys) required additional time to sort through them.

Both defendants (Delta and United) opposed the plaintiffs’ request for an extension, questioning whether the plaintiffs had staffed the document review with 70 attorneys and suggesting the Court review the plaintiffs’ counsel’s monthly time sheets to verify that statement.  Delta also questioned by it would take the plaintiffs so long to review the documents and tried to extrapolate how long it would take to review the entire set of documents based on a review of 3 documents per minute (an analysis that the plaintiffs called “preposterous”).  United indicated that it engaged “over 180 temporary contract attorneys to accomplish its document production and privilege log process within the deadlines” set by the Court, so the plaintiffs should be expected to engage in the same expenditure of resources.  But, the plaintiffs contended that they “could not have foreseen United’s voluminous document production made up [of] predominantly non-responsive documents resulting from its deficient TAR process when they jointly proposed an extension of the fact discovery deadline in February 2018.”

Judge’s Ruling

Judge Kollar-Kotelly noted that “Plaintiffs contend that a showing of diligence involves three factors — (1) whether the moving party diligently assisted the Court in developing a workable scheduling order; (2) that despite the diligence, the moving party cannot comply with the order due to unforeseen or unanticipated matters; and (3) that the party diligently sought an amendment of the schedule once it became apparent that it could not comply without some modification of the schedule.”  She noted that “there is no dispute that the parties diligently assisted the Court in developing workable scheduling orders through their preparation of Joint Status Reports prior to the status conferences in which discovery issues and scheduling were discussed, and in their meetings with the Special Master, who is handling discovery matters in this case.”

Judge Kollar-Kotelly also observed that “United’s core production of 3.5 million documents — containing numerous nonresponsive documents — was unanticipated by Plaintiffs, considering the circumstances leading up to that production” and that “Plaintiffs devoted considerable resources to the review of the United documents prior to filing this motion seeking an extension”.  Finding also that “Plaintiffs’ claim of prejudice in not having the deadlines extended far outweighs any inconvenience that Defendants will experience if the deadlines are extended”, Judge Kollar-Kotelly found “that Plaintiffs have demonstrated good cause to warrant an extension of deadlines in this case based upon Plaintiffs’ demonstration of diligence and a showing of nominal prejudice to the Defendants, if an extension is granted, while Plaintiffs will be greatly prejudiced if the extension is not granted.”  As a result, she granted the motion to request the extension.

So, what do you think?  Was the court right to have granted the extension?  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.

Also, if you’re going to be in Houston on Thursday, September 27, just a reminder that I will be speaking at the second annual Legal Technology Showcase & Conference, hosted by the Women in eDiscovery (WiE), Houston Chapter, South Texas College of Law and the Association of Certified E-Discovery Specialists (ACEDS).  I’ll be part of the panel discussion AI and TAR for Legal: Use Cases for Discovery and Beyond at 3:00pm and CloudNine is also a Premier Platinum Sponsor for the event (as well as an Exhibitor, so you can come learn about us too).  Click here to register!

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.

Survey Says! Predictive Coding Technologies and Protocols Survey Results: eDiscovery Trends

Last week, I discussed the predictive coding survey that Rob Robinson was conducting on his Complex Discovery site (along with the overview of key predictive coding related terms.  The results are in and here are some of the findings.

As Rob notes in the results post here, the Predictive Coding Technologies and Protocols Survey was initiated on August 31 and concluded on September 15.  It’s a non-scientific survey designed to help provide a general understanding of the use of predictive coding technologies and protocols from data discovery and legal discovery professionals within the eDiscovery ecosystem.  The survey was designed to provide a general understanding of predictive coding technologies and protocols and had two primary educational objectives:

  • To provide a consolidated listing of potential predictive coding technology and protocol definitions. While not all-inclusive or comprehensive, the listing was vetted with selected industry predictive coding experts for completeness and accuracy, thus it appears to be profitable for use in educational efforts.
  • To ask eDiscovery ecosystem professionals about their usage and preferences of predictive coding platforms, technologies, and protocols.

There were 31 total respondents in the survey.  Here are some of the more notable results:

  • More than 80% of responders (80.64%) shared that they did have a specific primary platform for predictive coding versus just under 20% (19.35%), who indicated they did not.
  • There were 12 different platforms noted as primary predictive platforms by responders, but only three platforms received more than one vote and they accounted for more than 50% of responses (61%).
  • Active Learning was the most used predictive coding technology, with more than 70% of responders (70.96%) reporting that they use it in their predictive coding efforts.
  • Just over two-thirds of responders (67.74%) use more than one predictive coding technology in their predictive coding efforts, while just under one-third (32.25%) use only one.
  • Continuous Active Learning (CAL) was (by far) the most used predictive coding protocol, with more than 87% of responders (87.09%) reporting that they use it in their predictive coding efforts.

Rob has reported several other results and provided graphs for additional details.  To check out all of the results, click here.

So, what do you think?  Do any of the results surprise you?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, if you’re going to be in Houston on Thursday, September 27, just a reminder that I will be speaking at the second annual Legal Technology Showcase & Conference, hosted by the Women in eDiscovery (WiE), Houston Chapter, South Texas College of Law and the Association of Certified E-Discovery Specialists (ACEDS).  I’ll be part of the panel discussion AI and TAR for Legal: Use Cases for Discovery and Beyond at 3:00pm and CloudNine is also a Premier Platinum Sponsor for the event (as well as an Exhibitor, so you can come learn about us too).  Click here to register!

Image Copyright (C) FremantleMedia North America, 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.

In California, IoT Device Cybersecurity Foresight is Also 2020, Apparently: Cybersecurity Trends

As I noted a couple of months ago, 2018 is certainly on its way to becoming the year of data privacy rights for the individual and, back then, California passed a new data privacy law which will give consumers several rights regarding their personal data (though the California AG doesn’t seem thrilled about it).  Now, California is once again poised to take the lead on important new technology policy.

As reported by The Washington Post (The Cybersecurity 202: California’s Internet of Things cybersecurity bill could lay groundwork for federal action, written by Derek Hawkins), a bill to set cybersecurity standards for Web-connected devices — from thermostats to webcams to cars — is awaiting Governor Jerry Brown’s signature after cruising through the state legislature late last month. If Brown signs it, California would become the first state to pass legislation to govern security of Internet of Things (IoT) devices, which experts say is crucial as these products proliferate and malicious hackers find new ways to exploit them.  Like the data privacy law passed back in June, this one (if signed by Governor Brown) also takes effect on January 1, 2020.

However, many cybersecurity researchers argue the California bill (SB-327) fails to address the core issues that make connected devices vulnerable to hacks. Nonetheless, it could lay the groundwork for stronger IoT cybersecurity legislation at both the state and federal level. California’s bill, if signed by Brown, could rekindle the national discussion in a similar way to how landmark privacy law the state recently approved helped spur high-level talks between the Commerce Department and tech giants about federal privacy regulations.

Policymakers grew more concerned about vulnerabilities in IoT devices after the massive Mirai botnet attack in 2016 highlighted just how poorly secured many such devices are. In that incident, hackers exploited weaknesses in webcams and other connected devices and used them to launch cyberattacks that took down Netflix, Spotify and other major websites for hours.

There’s legislation on the table in Congress that would go further. The Internet of Things Cybersecurity Improvement Act, introduced by Virginia Senator Mark R. Warner and Colorado Senator Cory Gardner, would use the federal government’s buying power to boost IoT security. Under the bill, any companies that do business with the federal government would have to ensure that their connected devices are patchable, come with passwords that can be changed, and are otherwise free of known security vulnerabilities. Another bill, the Securing IoT Act, would require the Federal Communications Commission to create cybersecurity standards for certifying wireless equipment.  However, those efforts and others have so far failed to gain traction, despite bipartisan agreement that some sort of federal standards may be necessary.

As for the California bill, some experts said its broad language was too vague to be effective, and offered an example of how not to approach IoT security. Well-intended as it might be, the bill “would do little improve security, while doing a lot to impose costs and harm innovation,” according to security researcher Robert Graham.

I guess we’ll see what happens with that bill as well as other efforts to regulate the security of IoT devices.  As usual, it will probably take a few well publicized hacks before any serious progress is made.  We take for granted how many IoT devices we use these days – maybe I’ll have to conduct a survey soon to get a sense of how many IoT devices each of us uses and what types.  That would be interesting!

So, what do you think?  Will the California IoT bill make a difference?  Please let us know if 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.

Despite Carpenter, This Defendant’s Cell Site Location Information is Ruled Admissible: eDiscovery Case Law

In United States v. Pleasant, Criminal Action No. 17-62 (E.D. Pa. Sept. 5, 2018), Pennsylvania District Judge Gerald Austin McHugh ruled that the defendant’s motion to suppress historical cell-site location information associated with his cellular telephone lacked merit, despite the Supreme Court’s recent decision in Carpenter v. United States, because the agents proceeded “by means of a court order issued under a federal statute that had repeatedly withstood Fourth Amendment scrutiny…in good faith under then existing law”.

Case Background

In this prosecution for multiple bank robberies, the defendant moved to suppress historical cell-site location information (CSLI) associated with his cellular telephone, citing the recent Supreme Court ruling in Carpenter v. United States. The Government obtained the CSLI, without a warrant, through an order issued pursuant to 18 U.S.C. § 2703(c), a provision of the Stored Communications Act, based on a showing that the records were “relevant and material” to an ongoing criminal investigation.

Judge’s Ruling

Judge McHugh observed that “Defendant correctly argues that under the Supreme Court’s recent decision in Carpenter v. United States, ___ U.S. ___, 138 S. Ct. 2206 (2018), the CSLI was obtained by the Government in violation of the Fourth Amendment. Defendant is also correct that Carpenter retroactively applies to this case. That does not end the inquiry, because the Government is equally correct that there is a good faith exception to application of the exclusionary rule. Having considered the parties’ submissions, I am persuaded that the government agents who accessed this information did so in good faith reliance on a federal statute and circuit court precedent that was controlling at the time.”

While noting that “In Carpenter, the Supreme Court addressed the constitutionality of this provision under the Fourth Amendment and concluded that, in accessing CSLI from wireless carriers, the Government had ‘invaded’ the defendant’s ‘reasonable expectation of privacy in the whole of his physical movements’”, Judge McHugh ruled:

“Despite Carpenter, Defendant’s Motion lacks merit. Under the exclusionary rule, as a general matter, the government may not introduce evidence in a criminal trial that was obtained in violation of the Fourth Amendment. The exclusionary rule, however, is rooted in policy considerations: it serves to enforce the Fourth Amendment by discouraging police misconduct. As the Supreme Court has recognized, the Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,’ but it has no provision ‘expressly precluding the use of evidence obtained in violation of its commands.’…Consequently, the exclusionary rule ‘is not an individual right and applies only where it `result[s] in appreciable deterrence.’’…Stated differently, it is a judicially imposed sanction applied when necessary to enforce the Constitution.”

As a result, Judge McHugh ruled: “Because application of the exclusionary rule here would not serve the purpose of deterring unlawful conduct by law enforcement, Defendant’s Motion to Suppress will be denied.”

So, what do you think?  Was the court right to have ruled the CSLI admissible despite the recent Carpenter ruling?  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.

Also, if you’re going to be in Houston on Thursday, September 27, just a reminder that I will be speaking at the second annual Legal Technology Showcase & Conference, hosted by the Women in eDiscovery (WiE), Houston Chapter, South Texas College of Law and the Association of Certified E-Discovery Specialists (ACEDS).  I’ll be part of the panel discussion AI and TAR for Legal: Use Cases for Discovery and Beyond at 3:00pm and CloudNine is also a Premier Platinum Sponsor for the event (as well as an Exhibitor, so you can come learn about us too).  Click here to register!

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.

University of Florida Brings eDiscovery Teachings to a Chinese University: eDiscovery Best Practices

Needless to say, eDiscovery is becoming more global than ever and we’ve certainly seen a lot of instances where non-U.S. legal practitioners have to not only better understand U.S. discovery obligations, but also understand the methodologies and technologies associated with managing eDiscovery.  One U.S. university recently spent some time bringing some of those teachings to a university in Nanjing, China.

As covered in Legaltech News® (University of Florida Brings E-Discovery Expertise Abroad With Chinese University Partnership, written by Rhys Dipshan), the University of Florida’s Levin College of Law recently partnered with Southeast University in Nanjing, China, to launch an intensive two-week course aimed at educating local law students on U.S. eDiscovery laws and practices. William Hamilton, legal skills professor and executive director of the University of Florida’s E-Discovery Project, led the course, which took place at Southeast University during the last two weeks of August.

Transmitting Hamilton’s wealth of eDiscovery knowledge to the 68 undergraduate and graduate Chinese students who attended the class, and who were all used to a vastly different legal culture, was a challenge. “The e-discovery process is not intuitive to Chinese students,” Hamilton said.  So, he had an idea about how to explain this complex subject matter to e-discovery novices: stick to concrete, real-life examples.

Hamilton designed the two-week course around a fictional cross-border e-discovery case. “We set up the course as though we were in the trenches, and I think that was very helpful for the students to see the context right away, instead of starting with relatively abstract concepts.”  As a result, the cross-border eDiscovery case that Hamilton created was loosely based on actual litigation he handled years ago as a practicing attorney in Florida and involved two fictional companies: “U.S. Computer” and “Nanjing Electric.”

“I created a mock dispute in which Nanjing had manufactured motherboards and shipped those to U.S. Computer to be incorporated into a product that was then sold to consumers. The consumer product, however, allegedly had defects in it, and the U.S. consumers were complaining and returning the product. So U.S. computer sued Nanjing Electric for breach of contract.”

Hamilton asked the class to pretend they were the law firm representing “Nanjing Electric,” and explained the U.S. legal process and e-discovery obligations they would face. From there, he moved on to teaching the students how to use e-discovery tools in preparation for the pretrial discovery.

There are talks between the two schools to extend their partnership and Hamilton noted that Southeast University is “very eager to continue to expand the relationship.”  In fact, given that eDiscovery expertise is fast becoming a much-needed skill in China, he expects such collaborations to become more common in the future.

So, what do you think?  Is your organization dealing with more cross-border 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.

Houston, We Have an Adverse Inference Finding: eDiscovery Case Law

In Hernandez, et al. v. City of Houston, No. 4:16-CV-3577 (S.D. Tex. Aug. 30, 2018), Texas District Judge Kenneth M. Hoyt, finding that the defendant “intentionally destroyed” evidence by wiping the hard drives of several custodians no longer employed by the City, determined “that entering an adverse inference finding is appropriate” against the defendant.

Case Background

In this case regarding alleged illegal detainment of the plaintiffs in City jail where each of the plaintiffs contends that he was held in the City’s jail for more than 48 hours without a judicial determination or a probable cause hearing, the Court entered an agreed ESI order in November 2017, which promoted cooperation between the parties (including agreement on search terms) and designated thirteen specific custodians, whose records the plaintiffs were seeking.  Weeks after the ESI Order, the defendant had still not supplemented missing metadata from an earlier production to bring the production into compliance with the Court’s Order and, after several meet and confers by phone, defendant’s counsel requested an in-person meeting.

On December 13, 2017, during that in-person meeting, the defendant represented that (i) it had not interviewed any of the custodians listed in the ESI Order, (ii) it had not collected documents from any of the custodians listed in the ESI Order and (iii) it had “wiped” the hard drives of six of those custodians no longer employed by the defendant.  At that meeting, the plaintiffs offered to provide names of vendors to help with document processing and review and offered to pay a substantial portion, if not all, of the costs that might be incurred. The defendant refused this offer and missed its December 15, 2017 deadline to certify document production was complete.

In January 2018, the defendant represented that it had collected 72,000 documents, but had yet to review them, despite the passage of the discovery deadline. By February 28, 2018, when the plaintiffs moved to compel production, the defendant had only produced 126 files from the Mayor’s office – all of which was unresponsive to the plaintiffs’ document requests.  In April 2018, the defendant claimed it had collected 2.6 million documents by running “word searches based on the ESI Protocol” and it would take 17,000 hours to review all of those documents.  Based on these representations, the plaintiffs agreed to provide a narrower set of search terms.  On April 10, 2018, the Court ordered the defendant to “produce all non-privileged documents responsive to the plaintiffs’ requests for production nos. 1-4, 8 and 9 in accordance with the Court’s November 8, 2017, ESI Order” and also notified the defendant that “[f]ailure to comply with this Order will result in sanctions, including but not limited to monetary sanctions and an adverse inference instruction”.

When the defendant ran the plaintiffs’ narrowed search terms, it retrieved 48,976 documents.  However, it then proceeded to unilaterally apply its own search terms, which retrieved 9,992 documents, which were reviewed for responsiveness.  The defendant produced only 368 responsive documents in response to the April 10 court order.

Judge’s Ruling

With regard to the wiped drives for the six custodians no longer employed by the defendant, Judge Hoyt stated: “Those hard drives contained ESI that should have been preserved by the City as soon as it anticipated litigation, and definitely after the instant lawsuit was filed. The City acknowledged its “clear obligation” to preserve all responsive documents after the litigation was pending. Yet the City failed to take reasonable steps to preserve the data on the hard drives and intentionally wiped the drives. The Court determines that the information on the hard drives cannot be restored or replaced through additional discovery.”

Judge Hoyt also found that the defendant had “Made Misrepresentations to the Court About Its Flawed Discovery Process”, indicating that it: 1) “represented that it needed to review 2.6 million documents”, 2) “did not review the 78,702 documents generated by the plaintiff’s April 2018 search terms”, 3) “represented that it had issued a litigation hold” and 4) “obfuscated the status of the hard drives”.

As a result, Judge Hoyt ruled, as follows:

“Federal Rule of Civil Procedure 37(b)(2) provides that an order establishing contested facts as true is an appropriate remedy when a party violates a discovery order. See Rule 37(b)(2)(i)-(ii). This type remedy cures the violation without inflicting additional costs on the parties, and for that reason, the Court determines, in its discretion that entering an adverse inference finding is appropriate…

Therefore, the Court HOLDS that the following inference is appropriate based on the City’s conduct:

It is established that (a) throughout the class period, the City of Houston had a policy of not releasing warrantless arrestees who had not received neutral determinations of probable cause within the constitutionally required period of time; (b) throughout the class period, the City’s policymakers were aware of this policy; and (c) the City’s policymakers acted with deliberate indifference to the unconstitutional policy and the constitutional violations that resulted.”

So, what do you think?  Was the adverse inference sanction appropriate in this case?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Also, if you’re going to be in Houston on Thursday, September 27, just a reminder that I will be speaking at the second annual Legal Technology Showcase & Conference, hosted by the Women in eDiscovery (WiE), Houston Chapter, South Texas College of Law and the Association of Certified E-Discovery Specialists (ACEDS).  I’ll be part of the panel discussion AI and TAR for Legal: Use Cases for Discovery and Beyond at 3:00pm and CloudNine is also a Premier Platinum Sponsor for the event (as well as an Exhibitor, so you can come learn about us too).  Click here to register!

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 Prepare for Litigation Before it Happens: eDiscovery Webcasts

Information Governance (IG) has always been part of the eDiscovery landscape and it has always been important for reducing the population of potentially responsive electronically stored information (ESI) that might be subject to litigation by helping organizations adopt best practices for keeping their information “house in order”. But now with an increased concentration on the two-fold concerns of privacy and security, IG has become more important than ever.  Here’s a webcast that can enable you to leverage IG best practices to prepare for litigation before it happens.

Wednesday, September 26th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Preparing for Litigation Before it Happens. In this one-hour webcast that’s CLE-approved in selected states, we will explore the implementation of Information Governance best practices to help organizations better prepare for litigation before it happens. Topics include:

  • Minority Report: Pre-Case for Litigation Avoidance
  • What Information Governance is and What it Isn’t
  • General Principles for Information Governance
  • Who Uses Information Governance?
  • IG Considerations and Issues
  • Basic Information Governance Solutions
  • Information Governance vs. Analytics
  • How Privacy/Security Has Impacted the Importance of an IG Program
  • Recommendations for Implementing an IG Program

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 know how to leverage IG best practices to prepare for litigation before it happens, this is the webcast for you!

Also, if you’re going to be in Houston on Thursday, September 27, just a reminder that I will be speaking at the second annual Legal Technology Showcase & Conference, hosted by the Women in eDiscovery (WiE), Houston Chapter, South Texas College of Law and the Association of Certified E-Discovery Specialists (ACEDS).  I’ll be part of the panel discussion AI and TAR for Legal: Use Cases for Discovery and Beyond at 3:00pm and CloudNine is also a Premier Platinum Sponsor for the event (as well as an Exhibitor, so you can come learn about us too).  Click here to register!

So, what do you think?  Is your organization as prepared as it could be for impending litigation?  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.

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 Compels Non-Party Insurance Agents to Produce Text Messages in TCPA Case: eDiscovery Case Law

In Gould v. Farmers Insurance Exchange, No. 4:17 CV 2305 RWS (E.D. Mo. Aug. 30, 2018), Missouri District Judge Rodney W. Sippel granted the plaintiff’s motion to compel two non-party Farmers Insurance agents to comply with subpoenas and produce documents pertaining to text messages that they allegedly sent to potential customers, rejecting the agents’ argument that compliance with the subpoenas would violate their Fifth Amendment right against compelled, self-incriminating testimony.

Case Background

In this Telephone Consumer Protection Act (TCPA) case, the plaintiff alleged that, at the direction of the defendant insurance companies, non-party Farmers Insurance agents James Lohse and Joe Ridgway sent text messages to her without her consent, in violation of the TCPA. The plaintiff sought to represent similarly situated plaintiffs who received messages without their consent marketing certain Farmers Insurance products.

To obtain information on potential plaintiffs and the alleged TCPA violations generally, the plaintiff served subpoenas on the non-party agents, which requested that the agents produce phone numbers of potential customers to which text messages were sent; the content of those text messages; any contracts, correspondence, invoices, and payment records the agents have with other entities that facilitated the alleged spam texts or provided the potential customers’ numbers; documents concerning any purchase of an insurance policy by the recipients of these texts; and any documents reflecting that the recipients of these texts consented to receive those messages.

The non-party agents objected and refused to produce documents responsive to these requests, initially arguing that such discovery was inappropriate until the parties’ resolved an initial question of consent. After the defendants’ declined to file a motion summary judgment on the issue of consent, the agents changed their objections, stating that compelling their production of the requested records would violate their Fifth Amendment Right against self-incrimination, and that the plaintiff’s requests were overly broad and burdensome. The plaintiff moved to compel the production, and the non-party agents moved for a confidentiality order.  The non-party agents argued that their answers to the plaintiff’s production requests would tend to incriminate them because the call logs in question could show a violation of 47 U.SC. § 227(b)(1).

Judge’s Ruling

Noting that the Fifth Amendment “privilege applies specifically to testimony, and not the production of documents, per se”, Judge Sippel stated that “where the documents themselves are incriminating, but their possession, control, and authenticity does not incriminate, the privilege would not apply.”  Continuing, he said:

“In this circumstance, the Agents’ mere possession, production, or authentication of call logs and other documents is not the act that would tend to incriminate them. The Fifth Amendment protection against self-incrimination accordingly does not protect against disclosure of the requested documents because of the ‘settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege.’…The Agents also argue that Gould’s production request is overbroad and burdensome. I disagree. The documents that Gould requests all pertain to whether the Agents texted potential consumers without their consent, and if so, how they did that.”

As a result, Judge Sippel granted the plaintiff’s motion to compel and denied the non-party agents’ motion for a confidentiality order.

So, what do you think?  Should production of potentially incriminating documents be protected under the Fifth Amendment?  Please let us know if 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 Another Survey to Check Out on the eDiscovery Uses and Capabilities of Office 365: eDiscovery Best Practices

A survey a day keeps the…blog posts written!  Yesterday, we covered the survey on Rob Robinson’s Complex Discovery site regarding predictive coding technologies and protocols.  Today, here is another survey worth participating in regarding the use of Microsoft Office 365’s eDiscovery capabilities.

On his Techno Gumbo blog, my colleague Tom O’Connor poses the question: Can eDiscovery Really Be Done Within Microsoft Office 365? Help Us Find Out. (Okay, that’s a question and a statement, but anyway…)

Tom is working with Don Swanson, president of Five Star Legal, to find out just how many firms out there are actually using Office 365 for eDiscovery. Most people know Office 365 as a software-as-a-service (SaaS) offering of email, word processing, spreadsheet and presentation applications. Office 365 and the Microsoft Cloud are not only used by most of the Fortune 500, it’s also used by many federal, state and local governments and educational institutions – and a growing number of businesses of any size.  To that end, they have come up with the O365 Challenge, a successor to the 2009 EDna Challenge posed by noted eDiscovery thought leader Craig Ball (which he reprised in 2016) and Tom’s 2011 follow up to that, the Ernie Challenge.

Like EDna and Ernie, the matter in question still has a budget restriction but all relevant data now resides within Microsoft Office 365.  Tom and Don really want to know if Office 365’s eDiscovery capabilities are for real, whether litigants can achieve the goals outlined in EDna and Ernie within Office 365 and whether big case eDiscovery processes can be handled within Office 365 on a small budget.

As with any good challenge, Tom provides on his blog the hypothetical scenario and describes the challenge, which includes several goals identified by the company general counsel noted in the hypothetical.  Then, Tom and Don have built a survey which asks about eDiscovery capabilities in Office 365, including each of the phases of the EDRM model.

Tom provides a link to the five-question survey in the post in SurveyMonkey (check the post link above to get it) and survey responses submitted before October 15 will be included in the white paper detailing the Microsoft Office 365 Challenge findings which Don and Tom will publish sometime in Q4.  You can also just send your comments directly to Don or Tom to include them in the final report.

While more and more organizations are using Office 365, I’m not sure they are fully using the eDiscovery capabilities of it, nor am I sure that they are finding those capabilities sufficient to accomplish what they need to accomplish to meet their eDiscovery burdens and goals.  I’ll be looking forward to the white paper to see what people have to say about it.

P.S.: For more about Tom and his latest video with Craig regarding Forensic Examination Protocol, click here.

So, what do you think?  Does your organization use Office 365?  If so, does it use its eDiscovery capabilities and find them useful?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Microsoft 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.

If You’re an eDiscovery Professional Interested in Predictive Coding, Here is a Site You May Want to Check Out: eDiscovery Trends

On his Complex Discovery site, Rob Robinson does a great job of analyzing trends in the eDiscovery industry and often uses surveys to gauge sentiment within the industry for things like industry business confidence.  Now, Rob is proving and overview and conducting a survey regarding predictive coding technologies and protocols for representatives of leading eDiscovery providers that should prove interesting.

On his site at Predictive Coding Technologies and Protocols: Overview and Survey, Rob notes that “it is increasingly more important for electronic discovery professionals to have a general understanding of the technologies that may be implemented in electronic discovery platforms to facilitate predictive coding of electronically stored information.”  To help in that, Rob provides working lists of predictive coding technologies and TAR protocols that is worth a review.

You probably know what Active Learning is.  Do you know what Latent Semantic Analysis is? What about Logistic Regression?  Or a Naïve Bayesian Classifier?  If you don’t, Rob discusses definitions for these different types of predictive coding technologies and others.

Then, Rob also provides a list of general TAR protocols that includes Simple Passive Learning (SPL), Simple Active Learning (SAL), Continuous Active Learning (CAL) and Scalable Continuous Active Learning (S-CAL), as well as the Hybrid Multmodal Method used by Ralph Losey.

Rob concludes with a link to a simple three-question survey designed to help electronic discovery professionals identify the specific machine learning technologies and protocols used by eDiscovery providers in delivering the technology-assisted review feature of predictive coding.  It literally take 30 seconds to complete.  To find out the questions, you’ll have to check out the survey.  ;o)

So far, Rob has received 19 responses (mine was one of those).  It will be interesting to see the results when he closes the survey and publishes the results.

So, what do you think?  Are you an expert in predictive coding technologies and protocols?  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.