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Electronic Discovery

Court Denies Southwest Airlines’ Motion for Rule 11 Sanctions Against Plaintiff: eDiscovery Case Law

In Houston v. Southwest Airlines, No. 3:17-cv-02610-N-BT (N.D. Tex. Feb. 18, 2020), Texas Magistrate Judge Rebecca Rutherford “decline[d] to impose sanctions under either Rule 11 or its inherent powers” against the plaintiff for statements she made regarding her response to the defendant’s interrogatories and requests for admission in her summary judgment response.

Case Background

The defendant served interrogatories and requests for admission on the plaintiff, and claimed that she did not respond. In her summary judgment response, however, the plaintiff asserted that she responded to the defendant’s interrogatories and requests for admission via email on April 20, 2019, and even followed up with counsel on May 1, 2019, to confirm defendant’s receipt of her answers.  The defendant objected that the plaintiff’s statements were “materially false” and contended that she made them for the improper purpose of avoiding summary judgment. As a result, the defendant sought sanctions under Fed. R. Civ. P. 11 and the Court’s inherent power in the form of an order: (1) striking the plaintiff’s summary judgment response without leave to amend; (2) granting the defendant’s Motion for Summary Judgment; and (3) requiring that the plaintiff pay the defendant $1,015.00 in attorney’s fees.  The plaintiff did not respond to the defendant’s Motion for Sanctions.

Judge’s Ruling

Judge Rutherford began her analysis by noting that “Federal Rule of Civil Procedure 11 authorizes a court to impose sanctions on a party or an attorney who files a pleading for an improper purpose, such as to harass the opposing party, delay the proceedings, or increase the cost of litigation.”  She also noted that “[c]ourts also have inherent authority to impose sanctions on attorneys when they find that an attorney has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons’”, while also noting that “[c]ourts ‘exercise caution’ in invoking their inherent power and should ‘ordinarily’ rely on a rule or statute rather than their inherent power.”

In this case, Judge Rutherford stated: “Here, the Court declines to impose sanctions under either Rule 11 or its inherent powers. The record in this case does not clearly establish that Houston’s assertions that she responded to Southwest’s discovery requests were made for an improper purpose. Indeed, there is no evidence in the record regarding Houston’s intent. She may have honestly, but mistakenly, believed she properly answered Southwest’s discovery requests. Sanctions under the Court’s inherent authority are inappropriate for the same reason. Accordingly, Southwest’s Motion for Sanctions is DENIED.”

So, what do you think?  Should the court have expected some documentation from the plaintiff to support her claim that she responded via email to avoid Rule 11 sanctions?  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.

The Ongoing Battle Over How ESI is Produced: eDiscovery Trends, 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, Mobile Collection: It’s Not Just for iPhones Anymore.  Now, Tom has written another terrific overview regarding mobile device collection titled The Ongoing Battle Over How ESI is Produced 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.  The first part was yesterday, here’s the second part.

Rule 34(b) and Form of Production

As I’ve said before, “read the rule book shankapotomous.”  So, let’s look at exactly what the rules say about this issue.  Federal Rules of Civil Procedure (FRCP) Rule 34, section (b) reads as follows:

(b) Procedure.

…..(1) Contents of the Request. The request:

……….(A) must describe with reasonable particularity each item or category of items to be inspected;

……….(B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and

……….(C) may specify the form or forms in which electronically stored information is to be produced.

…..(2) Responses and Objections.

……….(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or — if the request was delivered under Rule 26(d)(2) — within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

……….(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

……….(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

……….(D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form—or if no form was specified in the request—the party must state the form or forms it intends to use.

……….(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

……………(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

……………(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

……………(iii) A party need not produce the same electronically stored information in more than one form.

The Rule above seems to make clear three salient points:

  1. The requesting party gets to specify the form of the production
  2. The responding party gets to object and offer a different format IF they can offer a specific set of objections with the reasons why they need to use an alternate format
  3. If neither side specifies a format, the default format is native files.

We’ll publish Part 3 – Objections to Native File Production and Counter-Arguments – on Friday.

So, what do you think?  Do you prefer image-based productions or native file productions?  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.

The Ongoing Battle Over How ESI is Produced: eDiscovery Trends

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, Mobile Collection: It’s Not Just for iPhones Anymore.  Now, Tom has written another terrific overview regarding mobile device collection titled The Ongoing Battle Over How ESI is Produced 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

Legal disputes in the civil arena typically succeed or fail these days as a result of the practice of eDiscovery.  FRCP Rule 26(f), which provides for a conference of the parties and planning for discovery. This conference was designed to speed up the discovery process but more and more it has become bogged down with disputes over one particular section in that rule, (3)(C), which states that the plan shall contain “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;”.

One plaintiffs side commentator, Atty Robert Eisenberg, has been particularly strident in his criticism of the arguments on the forms of production.  Bob is well known in the eDiscovery community as a consultant and educator having been instrumental in forming the both the Georgetown Advanced Ediscovery Institute and the  Ediscovery Training Academy as well as currently being the Program Director at the Cleveland-Marshall College of Law’s (CMLaw) eDiscovery Professional Certificate Program.

Bob stated in an article from last year on my TechnoGumbo blog that defense firms

“ … in virtually every litigation (no matter how varied the types of ESI; no matter how limiting to plaintiffs) [strive] to assure that records produced in discovery are delivered by defendants to plaintiffs in an imaged-based format (Tiff or PDF) with load files for searchable text and metadata; and, practically never provided (except for a tiny proportion that are considered worthless as evidence in image format) as files produced in the manner in which they have been created and stored; that is, in their ultimately most utilizable incarnation; in native form.”

Why do so many producing parties offer load files with static images and text instead of native files?  Often it has to do with perceived, or at least argued, shortcomings of native files.  And defense firms commonly argue that image-based productions are actually cheaper than native file productions because they save plaintiffs the cost of processing and are comparable in utility to native files.

In this paper, we will take a look at the battle over how ESI is produced, including:

  1. Rule 34(b) and Form of Production
  2. Objections to Native File Production and Counter-Arguments
  3. Conclusions

We’ll publish Part 2 – Rule 34(b) and Form of Production – tomorrow.

So, what do you think?  Do you prefer image-based productions or native file productions?  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 Grants Plaintiff’s Motion to Compel Discovery in Loan Dispute: eDiscovery Case Law

In Grande v. U.S. Bank Nat’l Ass’n, No. C19-333 MJP (W.D. Wash. Feb. 20, 2020), Washington District Judge Marsha J. Pechman granted the plaintiffs’ motion to compel discovery, finding the policies requested were “relevant under the broad civil discovery standard” and that the defendants “ha[d] not demonstrated that the policies are confidential, proprietary, or trade secrets”.  Judge Pechman also granted the plaintiffs’ request for attorney’s fees in bringing the motion.

Case Background

In this case involving the plaintiffs’ allegations that the defendants breached a loan agreement (and violated several laws), the plaintiffs served written discovery on the defendants in July 2019 – to which the defendants responded in September 2019 with a production that the plaintiffs described as “completely deficient.”  The Parties held a discovery conference in October and the defendants served amended responses several weeks later, which the plaintiffs indexed and determined that large numbers were duplicative and the defendants’ production remained deficient.  After the plaintiffs drafted a Request for a Joint Submission to the Court pursuant to Local Rule 37, seeking assistance in resolving the discovery disputes, the defendants’ attorney declined to use the joint submission but claimed that the document provided him with “additional information” that clarified the alleged discovery deficiencies and asked for plaintiffs’ counsel to “work with him” to resolve the discovery dispute.

The plaintiffs held another discovery conference in November 2019 and the defendants agreed to supplement production with additional documents totaling 1,000 pages, voice recordings of four phone calls made by the Plaintiffs to Nationstar, a full life of loan history, and communications that had not been previously produced, all before November 28.  The defendants produced the 1,000 pages but none of the other material, with no explanation.  On January 11, 2020 the plaintiffs filed a Motion to Compel, seeking complete responses to a dozen Interrogatories and Requests for Production, as well as attorney’s fees.  Several weeks later, the defendants produced additional documents, a privilege log, and supplemental discovery responses, but still did not produce documents responsive to Request for Production No. 17.  The defendants argued that the loan modification guidelines requested in that request were not relevant and confidential, proprietary, and trade secrets.

Judge’s Ruling

With regard to the plaintiffs’ motion to compel and the defendants arguments, Judge Pechman stated: “First, the requested documents are relevant under the broad civil discovery standard, which allows litigants to ‘obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.’…Here, Plaintiffs contend that documents responsive to this request provide ‘information about the policies, processes, and procedures Defendants used to make various decisions regarding the Grandes’ loan modification application.’…Where Plaintiffs allege that Defendants’ evasive, shifting explanations for denying their loan modification were bad faith attempts to avoid their obligations, comparing Defendants’ policies to their behavior is relevant to Plaintiffs’ claims.”

Continuing, Judge Pechman stated: “Second, Defendants have not demonstrated that the policies are confidential, proprietary, or trade secrets… Here, Defendants have not moved for a protective order or listed the documents on a privilege log…Nor have they explained how these policies are trade secrets that give them a competitive advantage over competitors… Further, the only two cases cited by Defendants concern a third-party subpoena where the movant failed to demonstrate relevance and a case concerning a motion for a protective order, neither of which support Defendants’ position… Because the Defendants here have not described any harm that would result from producing the guidelines and have not sought a protective order, the Court declines to find the documents so confidential that they cannot be produced. Defendants must therefore produce all documents responsive to Plaintiffs’ Request for Production No. 17 within seven days of the date of this Order.”

Judge Pechman also granted the plaintiffs’ request for attorney’s fees in bringing the motion, stating: “Here, Plaintiffs brought this Motion after several good faith attempts to obtain the requested discovery…and nothing before the Court suggests that Defendants’ delay was justified or that an award of expenses would be unjust. To the contrary, Defendants’ substantial delay in responding to the discovery requests has delayed the trial in this matter…and necessitated the present Motion”.

So, what do you think?  Was the court justified in granting the request for attorney’s fees or should it have been more patient since the defendants continued to supplement their production?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

By the way, there was some confusion about the list of EDRM Global Advisory Council members that I initially posted on Friday.  I had thought that was the entire list, but it was only a supplemental list to the list of Global Advisory Council members announced earlier this year.  I have updated my post to reflect the entire list of members — click here to view the post with the entire list this time.

Case opinion link courtesy of eDiscovery Assistant, which now is directly to the eDA site, enabling you to search within the case and see related cases (with eDA subscription).

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.

Two Out of Three Companies Haven’t Reviewed Their Breach Preparedness Plans: Cybersecurity Trends

The singer Meat Loaf (real name Marvin Lee Aday) had a song once called Two Out of Three Ain’t Bad. Well, in this case, it is.  According to a new study, many companies haven’t updated their data breach plans since developing them, report a lack of adequate employee training on data protection, and still haven’t figured out how to guard cloud services and mobile devices.

As reported by Legaltech® News (Two Out of Three Companies Haven’t Reviewed Their Breach Preparedness Plans, Study Says, written by Sue Reisinger), a study of global companies also found that just over half of professionals believed their C-suite executives knew the company’s plan to deal with a breach.  The “Seventh Annual Study: Is Your Company Ready for a Big Data Breach?” was sponsored by Experian Data Breach Resolution and conducted by Ponemon Institute.

“I was surprised that two out of three respondents said they haven’t reviewed or updated their data breach preparedness plans,” said Michael Bruemmer, vice president of data breach resolution and consumer protection at Experian. “Preparedness plans can’t be a binder on a shelf that are not active and fluid plans. They should be reviewed and updated at least on a yearly basis.”

Bruemmer said a main takeaway from the report for general counsel is that “their clients are not preparing enough by practicing [data breach drills] and updating their response plans. They should work with clients to ensure this piece is a well-oiled machine.”

The study showed that 55% of respondents believed their C-suite executives knew the company’s plan to deal with a breach, but Bruemmer said the number should be higher. He recommended that general counsel make sure the CEO and C-suite “are knowledgeable and prepared for a data breach response. We have witnessed many leaders ill-equipped to handle the consumer response after a data breach.”

Here are some other notable study findings:

  • About 36% of respondents reported their organization had a ransomware attack last year with only 20% feeling confident in their ability to deal with it. The average ransom was $6,128 and 68% of respondents say it was paid.
  • Spear phishing attacks are pervasive, with 69% of respondents reporting one or more attacks and 67% saying the negative consequences of these attacks were very significant. Bruemmer called these threats “rudimentary at this point, and … a strong employee training program against these attacks [is] a must.”
  • Some 68% of respondents said their company has put more resources toward security technologies to detect and respond quickly to a breach. Still data breaches are increasing, with significantly more organizations reporting data breaches than ever before. “Consequently, confidence levels among executives to thwart spear phishing and other common attacks have declined,” according to the report.
  • More organizations at 54% report they have a high ability to comply with the European Union’s General Data Protection Regulation, compared with only 36% a year ago.

You can download a copy of the study from the Experian web site here.

So, what do you think?  Are you surprised by any of these findings?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Page Six

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.

EDRM Announces Five New Projects: eDiscovery Best Practices

Did anybody doubt that EDRM under the leadership of Mary Mack and Kaylee Walstad was going to be doing BIG things?  If you did doubt it, here’s an announcement that signals that EDRM will be busy creating and improving frameworks, resources and standards within the eDiscovery community.

Last week, EDRM announced five new projects and is seeking new contributors for them.  They are:

Data Sets: This new project is being championed by Cash Butler, founder of Clarilegal, and is seeking project participants. “Everyone still tests and demonstrates with the very old and familiar data set that is comprised primarily of Enron email and attachment data,” claims Cash Butler. “A new modern data set needs to be created that is focused on modern data types as well as email. Slack, Snapchat, Instagram, text messaging, GPS and many other data types that are needed for testing and demonstrating how they process and present in a useful way. In addition, to creating the new data set we will also look to form a framework for community members to easily add, curate and update the data set to stay current.”

One word: Hallelujah!  We’ve needed new up-to-date data sets for years to replace the old Enron set, so I’m hopeful this team will make it happen.

Processing Specifications: John Tredennick, founder of Merlin Legal Open Source Foundation is championing this project with the help of co-trustees Craig Ball, president, Craig D. Ball P.C. (who recently created a processing primer) and Jeffrey Wolff, director of eDiscovery services and principal architect, ZyLAB. The Processing Specifications project will run in parallel with the Merlin Foundation’s programming project for processing.

Data Mapping: Eoghan Kenny, associate, senior manager data projects and Rachel McAdams (no, not her), data projects, at A & L Goodbody, Ireland are championing this project, which the need has arisen due to the new SEAR Act (senior executive accountability regime) to help provide frameworks around who is responsible for what data and where it resides. “The importance of data mapping has grown enormously in Europe – not just for GDPR and investigation purposes, but also to help organizations deal with the increasingly active regulatory environment,” says Kenny. “However, most of our clients struggle with data mapping as it is a new concept to most organizations, with no clear business owner, that often sits in limbo between the “business” and “IT”! The goals of this project are to build frameworks for data mapping exercises, and provide clear guidelines on what the process should look like, because the better an organization understands its data, the cheaper it is to comply with any discovery or investigation obligations.”

State eDiscovery Rules: Suzanne Clark, discovery counsel at eDiscovery CoCounsel and Janice Yates, senior e-discovery consultant at Prism Litigation are co-championing this project and how the State Rules relate to the eDiscovery Federal rules in place. The vision for the State eDiscovery Rules project is to provide a starting point for attorneys to quickly reference the rules in different states and compare and contrast to the federal rules with the various state rules relating to eDiscovery. For example, if an attorney is involved with a case in a state where they are not accustomed to practicing, this EDRM resource will allow them to quickly get up to speed on that state’s rules, where they differ and where they align with the federal rules. “The project work happening at the EDRM is impressive,” says Suzanne Clark. “The time and talent that the project leads and participants donate to the cause of advancing eDiscovery knowledge and good practices will surely serve to advance the industry and legal practice in the discovery realm.”  The project will start with Florida and Michigan and are looking for more contributors from other states.

I look forward to this as we need an up to date resource here – I’m not sure that the ones I’ve covered in the past are being actively updated.

Pro Bono: This project was just launched and has had an overwhelming reach out from people in every area, attorneys, paralegals (and associations), litigation support professional, service providers, platforms, corporations and those in need. We are still seeking assistance as the need for access to justice is great. Stewarded by BDO director, George Socha and HB Gordon, eDiscovery manager for the Vanguard Group, the Pro Bono project will create subgroups to accelerate providing eDiscovery services to those in need.

As the announcement notes, projects, both ongoing and newly initiated, will be advanced at the EDRM Summit/Workshop 2020 at Duke University School of Law, June 24-26. I’ll have more to say about that as we get closer to it, but it certainly sounds like it will be very busy!  I’m certainly planning to be there!

So, what do you think?  Are you interested in participating in EDRM?  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.

Top Ten Tips for Working with eDiscovery: eDiscovery Best Practices

I stumbled across a post in our blog that Tom O’Connor did over a year ago to conclude his series titled Will Lawyers Ever Embrace Technology?  As usual, Tom did a great job and, in this post, he offered his top ten tips for working with eDiscovery.  Tom provided a top ten list terrific enough to make David Letterman proud, but I thought the list could use some additions – in the form of links to resources for the items.  Here goes!

As a reminder, here are the top ten tips from Tom’s post:

  1. Read the Rules
  2. Read the Decisions
  3. Know the Terms
  4. Know Where Your Data Is
  5. Talk to The IT Department
  6. Talk to The Records Management People
  7. Make a Records Management Policy
  8. Make A Litigation Hold Policy
  9. Enforce the Litigation Hold Policy
  10. Meet with Your Client’s Inside Counsel

Let’s take them one (or sometimes two) at a time.

Read the Rules: As Tom notes, the Federal Rules of Civil Procedure (FRCP) lay out the framework for your obligations in handling eDiscovery, but many states have rules that may differ from the FRCP.  Not only that, but the FRCP is comprised of a lot of rules which don’t necessarily have to do with eDiscovery.  So, which ones do you need to know?  There are two notable Rules updates that have significant eDiscovery impact: the 2006 and 2015 updates.  Fortunately, we covered them both in our webcast titled What Every Attorney Should Know About eDiscovery in 2017, which (as you can tell by the title) is three years old now (but still relevant for this topic).  You can click on the webcast to get access to the slides (via the attachments link) if you don’t want to sit through the hour-long webcast.  As for states rules, K&L Gates has a listing of states that have enacted eDiscovery rules (not all of them have), so you can check your state (and other states) here.

Read the Decisions: To find decisions related to eDiscovery, you can find plenty of those right here on the eDiscovery Daily blog – for free!  We’re up to 734 lifetime case law related posts, covering 566 unique cases since our inception back in 2010.  You can see them all here or wind them down year by year here.  If you want even more decisions (1,500 to 2,000 a year, not to mention other terrific resources), you can find those at our go to site for case law – eDiscovery Assistant.

Know the Terms: Tom notes in his post the importance of knowing the terms and even provides a terrific resource – The Sedona Conference – for a great terms list, which was just updated and we covered it and how to get it here!

Know Where Your Data Is: When it comes to knowing where your data is, a data map comes in really handy.  And, with GDPR and other factors emphasizing data privacy, that’s more important than ever.  Here are several templates to get started.

Talk to The IT Department: Tom says “You’re Lewis and Clark, they’re Sacajawea. You cannot…absolutely cannot…navigate without them.”  Knowing the terms and understanding data maps (see previous two paragraphs) will help bridge the communication gap and help here too.

Talk to the Records Management People and Make a Records Management Policy: Records Management is a term that has been around for a long time.  A more recent term that has become synonymous is Information Governance.  eDiscovery Daily has over 200 posts related to Information Governance, including this seven blog post series from Tom here.  Enjoy!

Make A Litigation Hold Policy and Enforce the Litigation Hold Policy: We’ve covered the topic of litigation holds several times as well during the almost 9 1/2 years of the blog, including these two posts (recently updated) where we discuss several things you need to consider when implementing your own litigation hold.

Meet with Your Client’s Inside Counsel: With all of the info you learned above, you’re well equipped to (as Tom puts it) “discuss all of the above”.  One more thing that can help is understanding topics that can be covered during the meet and confer that will benefit both you and your client.  Here’s a webcast that will help – again, you can click on the webcast to get access to the slides (via the attachments link) if you don’t want to sit through the hour-long webcast.

One more thing that Tom notes in his post is that “eDiscovery is a process comprised of separate distinct stages, any one of which may have specific software available for that stage” and that’s very true.  Certainly, that’s true at CloudNine, where, in addition to our Review product mentioned above, we also have a product that collects data from O365 and One Drive (CloudNine Collection Manager™), an Early Data Assessment platform (CloudNine Explore™), a processing and production platform known as the “swiss-army knife of eDiscovery” (CloudNine LAW™) and a tried and true desktop review platform (CloudNine Concordance®).  There are as many workflows as there are organizations conducting eDiscovery and getting the most out of software products available from CloudNine or other providers to maximize your own workflow is key to succeeding at eDiscovery.  Work with your software provider (whoever they are) to enable them to help maximize your workflow.  Help us help you!  :o)

So, what do you think?  Are you familiar with all of these resources?  If not, now you can be!  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.

The Sedona Conference Has an Updated Glossary (Again): eDiscovery Best Practices

Just when I need a topic for a Monday, The Sedona Conference® (TSC) delivers!  Last Friday, TSC and its Technology Resource Panel announced the publication of The Sedona Conference Glossary, eDiscovery & Digital Information Management, Fifth Edition.

This Fifth Edition, encompassing 130 pages and nearly 800 definitions, reflects the rapid expansion of privacy and data security laws and regulations. It incorporates new definitions related to Big Data, GDPR, and the science of Technology-Assisted Review; deletes outdated terms; and updates others in response to evolving technology and case law.  From “30(b)(6)” and “Ablate”, which is to burn laser-readable “pits” into the recorded layer of optical disks, DVD-ROMs and CD-ROMs (obvy!) to “Zombie Cookies” and “Zone OCR”, this Glossary covers it all.

Do you know what “Basic Input Output System (BIOS)” is?  How about a “Data Lake”?  Or the Federal Information Processing Standards (FIPS)?  What about “Harvesting”? (which can be done any time of year, by the way).  Do you know for which term “Make-Available Production” is synonymous?  Do you know what “Sentiment Analysis” is?  No, it has nothing to do with studying romantic movies. Do you know what “Thread Suppression” is?  Those, and many more, definitions are in this Glossary.

As I noted above, this is the Fifth(!) edition of the glossary.  The original was all the way back in May 2005 and there have been subsequent editions in December 2007, September 2010 and April 2014.

You can download a copy of the Glossary here (login required, which is free).

So, what do you think?  Are you up on your electronic discovery terms?  If not, now you can be!  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.

Whee! Here’s the First Salary Survey from Women in eDiscovery!: eDiscovery Trends

Earlier this week, Women in eDiscovery (WiE) announced the results of its first ever salary survey!  Let’s take a look.

WiE conducted the 2019 Salary Survey between September 17th and September 27th, 2019, and received 400+ responses from men and women internationally in the eDiscovery industry. Of those responses, 93% of respondents identified as women, and the graphs and information depicted in their report are specific to that 93% who identified as women. The intention was to provide insight into experience, titles, compensation, and benefits specific to women in the eDiscovery industry.

WiE’s survey report provides information on skills, certificates and experience that women may need to advance their eDiscovery careers. It also identifies current trends and compensation, specific to women, which will assist hiring managers to make more informed decisions. WiE intends on releasing the survey annually, allowing for comparative analyses over the years.

“Women in eDiscovery is pleased to provide our first compensation survey for eDiscovery and legal professionals,” says Beth Finkle, executive director, Women in eDiscovery (quoted in this article from Legal IT Professionals). “It provides a unique comparison of salaries, bonuses, job skills, job levels, geographic factors and other industry trends in the eDiscovery and legal sectors.”

“The survey was fully anonymous, with no identifiable data gathered. The questions were designed to minimize response time, while still providing meaningful insights across eDiscovery and legal professionals. We want to thank a handful of WiE members that helped the executive directors formulate the survey and to the legal community who participated in the survey,” continued Finkle.

A couple of notable stats from the eight-page report, which is available here:

  • 84% of respondents work primarily in-office vs. remotely. For the 16% of respondents who answered that they work primarily remotely, California, Arizona, and Texas were the 3 states with the most remote workers.
  • Review Platform Certifications were consistently the top certifications held across job titles with the exceptions of Law Clerks and Paralegal/Legal Assistants, for which Paralegal Certifications was the top certification (both at 19% of total respondents). 12% of respondents held the ACEDS Certification and only 5% of respondents held a Project Management Certification, even though it was the top task performed across all job titles.

The report is chock-full of infographics (have I told you lately how much I love infographics?), especially with regard to compensation, so check it out!

Here’s a Friday bonus link not related to anything eDiscovery related.  Do you ever have trouble guessing who the villain is in some movies?  Here’s a clue for you that may make it easier.  Enjoy!  :o)

So, what do you think?  Do you wonder where you stand in your profession, compensation-wise?  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.

Plaintiff Tells Defendant “File Motion to Compel”, Defendant Does and Wins: eDiscovery Case Law

In White v. Relay Res. & Gen. Servs. Admin., NO. C19-0284-JCC (W.D. Wash. Feb. 14, 2020), Washington District Judge John C. Coughenour granted the defendant’s motion to compel, requiring the plaintiff to provide documents responsive to the defendant’s requests for production, provide the information requested in each interrogatory and provide initial disclosures and that “[f]ailing to provide this information may result in sanctions under Rule 37, including dismissal of the matter.”

Case Background

In this employment discrimination claim against the defendant where the plaintiff alleged the defendant discriminated against her because she is deaf, the defendant served 31 requests for production and 13 interrogatories on the plaintiff in November 2019.  The plaintiff responded to these requests about a month later, objecting to the requests for production on various grounds and failing to indicate whether she was withholding responsive documents.  In response to the interrogatories, the plaintiff raised broad objections and did not provide any of the requested information, indicating in each response that she would later provide the requested information if it was “relevant” to responding the interrogatory.  The defendant also claimed that the plaintiff did not produce initial disclosures.

The defendant attempted to meet and confer with the plaintiff two days after receiving her responses, expressing concern with sufficiency of her responses and offering an extension for the plaintiff to supplement her responses.  The defendant also requested an in-person meeting to attempt to resolve the discovery dispute, but the plaintiff refused to meet outside the State of Virginia and also refused a teleconference, stating that she did “not have any line of communication open except emails and written communication.”  So, the defendant proceeded to email the plaintiff specific examples of its “serious concerns regarding the insufficiency of [her] responses.” The plaintiff then supplemented her responses to the requests for production with three screenshots of email correspondence between the plaintiff and the defendant’s employees about benefits, as well as a scanned page from a yearbook.  In response, the defendant informed the plaintiff that if she did not provide responsive documents or answers to its interrogatories by the extended deadline, it had no choice but to file a motion to compel with the Court.  Instead of further supplementing her responses, the plaintiff replied, “Ok. File Motion to Compel.”

Judge’s Ruling

Judge Coughenour first noted that “although the parties did not meet in person or have a telephone conference, Defendant made a good faith effort to satisfy the meet-and-confer requirement before filing the instant motion to compel. Defendant made multiple attempts to resolve its discovery dispute before reaching a genuine impasse on December 30, 2019, when Plaintiff told Defendant to ‘File Motion to Compel.’…Consequently, Defendant has satisfied the meet-and-confer requirement.”

With regard to the requests for production, Judge Coughenour stated: “the Court has reviewed Defendant’s requests for production, and they appear to be relevant and proportional to the case… The Court acknowledges Plaintiff is not represented by counsel and that she may be responding to and cooperating with Defendant to the best of her ability…Nevertheless, Plaintiff’s perfunctory objections do not reflect a good faith effort to comply with discovery rules. Plaintiff must make reasonable efforts to provide documents responsive to Defendant’s requests for production. Failure to do comply may result in sanctions, including dismissal of the present action.”

With regard to the interrogatories, Judge Coughenour found “Defendant’s interrogatories to be facially relevant and proportional to the needs of the case.”  He also stated: “Here, Plaintiff raised vague, broad objections to each of Defendant’s 13 interrogatories and did not provide any of the requested information…Within 30 days, Plaintiff must provide Defendant with the information requested in each interrogatory. Failing to make reasonable efforts to respond to Defendant’s interrogatories may result in sanctions under Rule 37, including dismissal of the matter.”

Judge Coughenour also stated, in fully granting the motion to compel: “Plaintiff is ordered to provide Defendant with initial disclosures at this time. Failing to provide this information may result in sanctions under Rule 37, including dismissal of the matter.”

So, what do you think?  Is the plaintiff’s failure to obtain counsel representation jeopardizing her case before it even gets going?  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.