Close
Enter your
text here

Electronic Discovery

eDiscovery in the Cloud: eDiscovery Best Practices

Relativity Fest started on Sunday and CloudNine is there.  As part of the team, I will be there covering the conference for eDiscovery Daily and will speaking(!) today.  Click here to see our post on some of the anticipated highlights from the conference.

Today’s highlight is my session: e-Discovery in the Cloud, today at 11:00 am, moderated by David Horrigan, e-Discovery Counsel and Legal Content Director at Relativity and we will be joined by Rachi Messing, Senior Program Manager at Microsoft, Ari Kaplan, Principal at Ari Kaplan Advisors and Kelly Twigger, Founder of ESI Attorneys.  If you’re at the show today, come check it out!

Yesterday was a terrific day, starting with the keynote speech from Andrew Sieja, the CEO of Relativity and continuing with terrific sessions, including the The Judicial Panel, with David Horrigan of Relativity, along with Judge Nora Barry Fischer of the Western District of Pennsylvania, Judge Andrew Peck of the Southern District of New York, Judge Xavier Rodriguez of the Western District of Texas and (all the way from Australia) Justice Peter Vickery of the Supreme Court of Victoria (and the recent landmark TAR decision in that country) to discuss the latest legal developments in eDiscovery.

There were several other great sessions, an ACEDS happy hour and a speaker dinner, with an opportunity to have a great time with other speakers at the show!  Quite a day!  Hopefully, today will be as much fun as yesterday!

So, what do you think?  Are you attending Relativity Fest this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can still vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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

Court Denies Default Judgment Sanctions for Defendant’s Production of Two Versions of Same Email: eDiscovery Case Law

But first, a reminder that Relativity Fest started yesterday and CloudNine is there.  As part of the team, I will be there covering the conference for eDiscovery Daily and will speaking(!) on Tuesday.  Click here to see our post on some of the anticipated highlights from the conference.  Today’s highlight is The Judicial Panel, today at 1:00pm, with David Horrigan of Relativity, along with Judge Nora Barry Fischer of the Western District of Pennsylvania, Judge Andrew Peck of the Southern District of New York, Judge Xavier Rodriguez of the Western District of Texas and (all the way from Australia) Justice Peter Vickery of the Supreme Court of Victoria (and the recent landmark TAR decision in that country) to discuss the latest legal developments in eDiscovery.

In Catrinar v. Wynnestone Communities Corp., et al., No. 14-11872 (E.D. Mich. Sept. 30, 2017), Michigan Magistrate Judge R. Steven Whalen denied the plaintiff’s Motion for Discovery Sanctions (requesting a default judgment) for fabricating and producing false evidence, finding that the defendant’s production of two versions of an email fail all four factors of the Harmon test applied by the court in this case to determine whether the defendant’s failure was due to willfulness, bad faith, or fault and whether the plaintiff was prejudiced by the defendant’s conduct, among other factors.

Case Background

In this case regarding the plaintiff’s claim against his former employer alleging violations of the Family Medical Leave Act (“FMLA”) as well as breach of contract and promissory estoppel, the centerpiece of the plaintiff’s Motion for Discovery Sanctions was an allegation that the defendants fabricated and produced false evidence in the case.  The allegation of false evidence stemmed from defendant Silverman’s apparent rewrite of an email originally sent on December 21, 2008, concerning an “E&S” Plan and whether Silverman was aware of the plan or authorized any amendments to the plan.  The original email, which the plaintiff referred to as ‘the real email,’ was written partially in Spanish; the second, which the plaintiff referred to as ‘the fake email,” elaborated more on Silverman’s lack of knowledge of any such plan.  Both emails were dated on December 21, 2008 and the plaintiff argued that the “fake email” fraudulently supported Silverman’s position that he did not authorize an amendment to the E&S Plan, and that the “real email” offered no such support.

The defendant conceded that the native Outlook email file of what the plaintiff referred to as the “fake email” showed that it was created in January 2012, not December 2008.  However, in Silverman’s declaration, he stated that he forwarded the December 2008 email to himself in January 2012 for the purpose of re-writing in English and elaborating on his original message, stating “The point of the two emails is the same.”

Judge’s Ruling

Judge Whalen stated: “The Court’s discretion is informed by the four-part test described in Harmon v. CSX Transportation, Inc…: (1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed or defaulted party was warned that failure to cooperate could lead to dismissal or entry of default judgment; and (4) whether less drastic sanctions were imposed or considered before dismissal or default judgment was ordered.”

Judge Whalen also noted that “In deciding whether to impose ‘the draconian sanction’ of default judgment, the first factor—the party’s willfulness or bad faith in failing to comply with a discovery order—looms large.”  Noting that “Plaintiff filed his complaint on May 9, 2014, about two years and four months after the ‘fake email’ was created”, Judge Whalen, while acknowledging that “the discrepancy between the two emails and Silverman’s explanation as to how the later email came to be created may undoubtedly be exploited to the Plaintiff’s advantage” in trial, nonetheless stated: “I do not find that Plaintiff has shown ‘willfulness, bad faith, or fault’ with respect to the creation of the 2012 email.”  Judge Whalen also found that the plaintiff failed to meet the second Harmon factor, determining that the plaintiff was not prejudiced due to the fact that an “extension of discovery cures any prejudice which might otherwise have occurred as the result of the delay in Defendants’ production of the emails.”  Judge Whalen also found that the third and fourth Harmon factors were also not met, stating: “Defendants have not been previously warned that a default judgment or other sanctions could be imposed for discovery violations, nor have any lesser sanctions been imposed.”  As a result, Judge Whalen denied the plaintiff’s Motion for Discovery Sanctions.

So, what do you think?  Was the defendant’s explanation for the second email plausible?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can still vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

Case opinion link courtesy of eDiscovery Assistant.

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.

Google Requests Contempt Order For $10,000 Sanctions Per Day Against…Google: eDiscovery Case Law

But first, a reminder that Relativity Fest starts this Sunday and CloudNine will be there.  As part of the team, I will be there covering the conference for eDiscovery Daily and will speaking(!) on Tuesday.  Click here to see our post on some of the anticipated highlights from the conference.

Last month, we wrote that Google went 0 for 2 in August in its request for review of warrant cases related to the Stored Communications Act of 1986 (SCA) and the order to produce ESI stored internationally that is subject to warrants was upheld in both cases, including a ruling in the Northern District of California on August 14.  Now, Google has filed an instant motion asking the Court to: “a) hold Google in civil contempt of the August 14 order; b) impose sanctions of $10,000 for every day that Google fails to comply; c) stay those sanctions until seven business days after the Ninth Circuit affirms the Court’s order; and d) require Google to preserve any information in its possession that is subject to the search warrant.” As noted in California District Judge Richard Seeborg’s order, “the The terms of the proposed sanctions are similar to the terms of stipulations that Google and other companies have entered into with the government in similar cases in other jurisdictions.”

So, why did Google ask the Court to impose a daily sanction of $10,000 against Google?  Evidently, while the government and Google “agree that Google should be held in contempt of the August 14 order”, they “disagree, however, about the appropriate way to devise a sanction that will ensure Google’s compliance and about whether an evidentiary hearing is needed to conduct that inquiry effectively.”  The government argued that “an evidentiary hearing is needed to assess the equities at stake in this case properly and to devise an appropriate sanction”, while Google contended that there is “no need to develop a more substantial evidentiary record or to devise a more severe sanction than the $10,000 per day fine that Google has proposed.”  Google also noted that “this Court already found in the August 14 order that, ‘[i]n light of the Second Circuit decision in Microsoft and the absence of relevant Ninth Circuit precedent, Google’s diligent, good faith efforts to comply with current law do not warrant contempt at this stage of the proceedings.’”

In ruling on the dispute, Judge Seeborg stated: “Of the two sides, Google’s arguments are more persuasive…The government acknowledges that Google has a right to press its appeal; it is not arguing that Google must turn over the information now. Neither is it arguing—at least at present—that Google should be held in criminal contempt for its past behavior. Thus, the only question currently in need of answer is what sanction will secure Google’s prompt compliance with the August 14 order should its appeal fail.”  Judge Seeborg also noted that “Should Google prevail on appeal, the issue will be moot. If Google loses, it will be required to comply with the August 14 order or be subject to the sanctions imposed by this order. If, at that time, Google fails to turn over data the government believes Google previously possessed but did not preserve, the government can raise the issue and seek an appropriate remedy.”

Tip of the hat to ACEDS for the link to the latest order in this case.

So, what do you think?  Will Google win its appeal?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can vote for it and still help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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

It’s Fall, But Does That Mean That eDiscovery Business Confidence is Falling?: eDiscovery Trends

The results are in from the Complex Discovery Fall 2017 eDiscovery Business Confidence Survey, which concluded two days ago and (as was the case for the 2016 Winter, Spring, Summer and Fall surveys and the 2017 Winter, Spring and Summer surveys) the results are published on Rob Robinson’s terrific Complex Discovery site.  How confident are individuals working in the eDiscovery ecosystem in the business of eDiscovery?  Let’s see.

As always, Rob provides a complete breakdown of the latest survey results, which you can check out here.  As I’ve done for the past few surveys, I will primarily focus on trends over the past four surveys to see how the responses have varied from quarter to quarter and will take a look at a year over year comparison to the Fall 2016 survey.

The Fall 2017 Survey response period was initiated on October 5, and continued until registration of exactly 100 responses by Tuesday (October 17). No decimal points!  Rob notes that this limiting of responders to 100 (or so) individuals is designed to create linearity in the number of responses for each quarterly survey.  So, in the future, if you want your voice heard, respond early!

Provider Respondents are Still the Majority: Of the types of respondents, 55% were either Software and/or Services Provider (44%) or Consultancy (11%) for over half of respondents as some sort of outsourced provider (over half of total respondents – as always, I’m counting law firm respondents as consumers even though they can also be providers as well).  Law firm respondents comprised a majority of the remaining respondents with 35%.  So, nine out of ten respondents was a provider or law firm participant.  Here’s a graphical representation of the trend over the past four quarters:

When comparing this year’s Fall survey to last year’s survey, the survey was once again less diverse than it was a year ago, especially with regard to the percentage of “Other” respondents.  Next year may be more of a baseline if the 100 respondent limit still applies (it didn’t go into effect until this year):

Over Half of Respondents Continue to Consider Business to Be Good: Over half (55%, to be exact) of respondents rated the current general business conditions for eDiscovery in their segment to be good, with 9% rating business conditions as bad.  Last quarter, those numbers were 53.4% and 5% respectively, so this quarter reflects a bit of an uptick in the “bad” business respondents.  Will that continue?  We’ll see.  Here is the trend for the last four quarterly surveys:

When comparing against last year’s Fall survey, respondents this Fall are slightly more bearish than they were a year ago (slight drop in “business is good” respondents, slight increase in “business is bad” respondents).  Not a significant change, but worth keeping an eye on:

Almost All Expect eDiscovery Business Conditions to be as Good or Better Six Months From Now: Almost all respondents (96%) expect business conditions will be in their segment to be the same or better six months from now (up from last quarter’s 93.1%), and the percentage expecting business to be better rose considerably to 55%.  So, we have a bunch of optimists!  Revenue (at combined 95% for the same or better) rose very slightly from the last quarter, while profit (combined 89%) essentially stayed the same from last quarter (but those predicting higher profits rose over 5 percent).  Here is the profits trend for the last four quarterly surveys:

When compared against last year’s Fall survey, the distribution for profits six months from now in this year’s survey is a bit more polarized than last year’s Fall results with a 3.4% increase of respondents expecting higher profits, but also a 0.4% increase of respondents expecting lower profits:

Nearly a Third Chose Budgetary Constraints as Being Most Impactful to eDiscovery Business: It’s budget time!  Budgetary Constraints was the top impactful factor to the business of eDiscovery over the next six months at 31% (aabout a 50% increase from last quarter) with Increasing Volumes of Data next up at 24%.  The other four factors were comparable: Data Security (13%), Increasing Types of Data (11%, back to its normal position in the pack), Lack of Personnel (also 11%) and Inadequate Technology (at 10%).  The graph below illustrates the distribution across the most recent four quarterly surveys.

A year ago, it was flip-flopped with Increasing Volumes of Data on top and Budgetary Constraints a strong second as the most impactful to eDiscovery business.  Those two factors are usually cited as the top two factors expected to impact eDiscovery business the most:

Executive Leader and Management Respondents Are the Strong Majority: Executive Leadership respondents rose strongly to 48% of respondents (from 41.6% last quarter), while Operational Management respondents also rose (again) to 36% – a total of 84% respondents from leadership and management roles.  Tactical Execution respondents dropped to its lowest percentage yet – 16%.  So, this is a survey primarily of leaders and managers, not so much doers.  Here’s the breakdown of the last four quarters:

The survey is considerably less distributed than last year as well.

Again, Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Check them out.  Winter, Spring Summer or Fall, all you gotta do is call! (or vote)…

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Windows 10 Fails to “Go Dutch” When it Comes to Protecting Privacy: Data Privacy Trends

After yesterday’s story regarding SCOTUS taking up the Microsoft Ireland case, I’m not trying to make this “bad news week” for Microsoft, but with GDPR looming next year, this seemed like a good story to cover…

According to Silicon (Windows 10 Data Collection Branded A Breach Of Dutch Privacy Law, written by Roland Moore-Colyer), the Dutch Data Protection Authority (DPA) has declared that Windows 10 breaches the data protection law in the Netherlands over the way it processes personal information.

A report filed by the DPA says that Microsoft failed to clearly inform its users on what type of data it was collecting and using and the agency claimed that Windows 10 users “lack control of their data” due to the way Microsoft harvests information.

“It turns out that Microsoft’s operating system follows about every step you take on your computer. That results in an intrusive profile of yourself,” said Wilbert Tomesen, vice-chairman of the DPA.

“What does that mean? Do people know about this? Do they want this? Microsoft needs to give users a fair opportunity to decide about this themselves.”

Microsoft said it had made compiling with Dutch law a priority to avoid having any sanctions posed against it, but also responded justifying why it collects Windows 10 data and explaining that a recent update spells out its data collection policy.

“Since launching Windows 10, we’ve been on a journey listening to feedback from customers and collaborating with regulators around the world,” said Marisa Rogers, Microsoft’s Windows and devices group privacy officer.

“As a result, we’ve made improvements to ensure all versions of Windows 10 meet our customers’ privacy needs and expectations. For example, we’ve worked with Swiss and French data protection authorities to incorporate their guidance, subsequently improving the privacy controls in Windows 10 Home and Pro and earning their positive assessments of the changes.”

“This year we have released a new privacy dashboard and several new privacy features to provide clear choices to our customers and easy-to-use tools in Windows 10. Next week, we have even more privacy improvements coming in the Fall Creators Update.”

Given its current Dutch conundrum, Microsoft’s current feelings about the Dutch may mirror those of this guy…

With the General Data Protection Regulation (GDPR) standard designed to strengthen and unify data protection for all individuals within the European Union (EU) going into effect next May (May 25th, to be exact), expect to continue to see more scrutiny on all companies and their data privacy policies.  And, if you think GDPR doesn’t apply to your firm, you may be wrong about that.

So, what do you think?  Is your organization preparing for GDPR?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can vote for it and still help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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.

SCOTUS to Take On Microsoft Ireland Case: eDiscovery Trends

A few months ago, we reported that the Department of Justice had asked the U.S. Supreme Court to overturn that landmark appeals court decision handed down last summer in favor of Microsoft Corp. that put their company data stored overseas mostly out of reach of U.S. law enforcement.  Yesterday, SCOTUS, at the urging of a whopping thirty-three states, agreed to take the case.

According to The Washington Post (Supreme Court to consider major digital privacy case on Microsoft email storage, written by Robert Barnes), the Supreme Court of the United States yesterday agreed to hear a dispute between the federal government and Microsoft about emails stored overseas.

The case that SCOTUS accepted on Monday began in 2013 when U.S. prosecutors got a warrant to access emails in a drug-trafficking investigation. It was served on Microsoft in Redmond, Wash. But the data sought was stored on its servers in Ireland. (The company has more than 100 centers in 40 countries.)

Microsoft turned over information it had stored domestically but contended that U.S. law enforcement couldn’t seize evidence held in another country. It said that if it was forced to turn over such information, it would lead to claims from other countries about data stored here.  A judge upheld the warrant, but a panel of the U.S. Court of Appeals for the Second Circuit overturned the ruling. The full circuit then split evenly on whether that decision was correct, and one judge wrote that the Supreme Court needed to provide the ultimate answer.

Thirty-three states also urged the court to take the case, U.S. v. Microsoft. They said that the decision has implications for other technology giants such as Google and Yahoo and that it was “remarkable” that the Second Circuit had held “that a private company has unfettered discretion to shield evidence of crime from law enforcement, simply by electronically sending that evidence out of the jurisdiction.”

Microsoft contended that the Stored Communications Act of 1986 (the law considered for this case and also the Google cases earlier this year where Google was ordered to comply with search warrants) did not imagine a world in which “a technician in Redmond, Washington, could access a customer’s private emails stored clear across the globe.”  “The current laws were written for the era of the floppy disk, not the world of the cloud,” Microsoft president and chief legal officer Brad Smith wrote.  He has a point there.

At Relativity Fest next week, I’m sure the topic will come up during our session e-Discovery in the Cloud, on Tuesday, October 24 at 11:00 am, moderated by David Horrigan, e-Discovery Counsel and Legal Content Director at Relativity where we will be joined by Rachi Messing, Senior Program Manager at Microsoft, Ari Kaplan, Principal at Ari Kaplan Advisors and Kelly Twigger, Founder of ESI Attorneys.  If you’re going to be there, you won’t want to miss that!

So, what do you think?  Should a 31 year old law determine whether data stored overseas (but accessed here) should be subject to subpoena?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can vote for it and still help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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 Characterizes Plaintiff’s Request for Spoliation of Images Still Available as “Frivolous”: eDiscovery Case Law

In Barcroft Media, Ltd. et al. v. Coed Media Grp., LLC, No. 16-CV-7634 (JMF) (S.D.N.Y. Sept. 28, 2017), New York District Judge Jesse M. Furman denied the Plaintiffs’ motion for spoliation sanctions for failing to preserve web pages containing disputed images, and motion in limine to preclude the testimony of a defense expert witness for failing to list him in the defendant’s initial disclosures.

Case Background

In this case regarding intellectual property claims against the defendant relating to the allegedly infringing use of certain celebrity photographs, the plaintiffs filed a motion for spoliation sanctions against the defendant for failing to preserve the “webpages” on which it had displayed the Images; and a motion in limine to preclude the trial testimony of a defense expert witness (Robert Coakley) after the defendant failed to list him in its initial disclosures.

Judge’s Ruling

Noting that the “Plaintiffs’ motions are without merit”, Judge Furman stated:

“Given the plain language of [Federal Rule 37(e)], Plaintiffs’ motion borders on frivolous, for the simple reason that they cannot even show that the evidence at issue was ‘lost.’ Several of the Images are still hosted on CMG’s websites…And the record makes clear that Plaintiffs themselves possess copies of the other Webpages—in the form of screen captures taken when they displayed the Images (the ‘Screenshots’)…In fact, Plaintiffs themselves list the Screenshots as trial exhibits…Given that (plus the fact that Defendant does not dispute the authenticity of the Screenshots…or deny that it hosted and displayed the Images…, there is no foundation to impose sanctions under Rule 37(e). And to the extent that there were a foundation, sanctions would be inappropriate because there is no evidence whatsoever that Defendant ‘acted with the intent to deprive another party of the information’s use in the litigation,’…, and Plaintiffs obviously cannot show prejudice ‘as [they] actually possess[ ] copies’ of the relevant evidence.”

As a result, Judge Furman denied the plaintiffs’ motion for sanctions and also denied the plaintiffs’ motion in limine to preclude the testimony of Coakley after the defendant’s failure to list him in the defendant’s initial disclosures, noting that violation was “plainly harmless and thus not a basis for preclusion”, but did note a concern regarding his testimony regarding Google Analytics data the judge deemed as “inadmissible hearsay” and instructed the parties to “be prepared to address that issue at the final pretrial conference”.

So, what do you think?  Should parties be sanctioned for failing to preserve web pages?  Should a screen capture copy of an image be treated differently than an imaged copy of a journal?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

Case opinion link courtesy of eDiscovery Assistant.

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 Sanctioned for Preserving Only Scanned Copy of Journal and Destroying the Original: eDiscovery Case Law

In Mitcham v. Americold Logistics, LLC, No. 17-cv-00808-WJM-NYW (D. Colo. Sept. 20, 2017), Colorado Magistrate Judge Nina Y. Wang granted (in part) the defendant’s motion for sanctions for the plaintiff’s delay in producing a copy of a journal she kept while employed by the defendant and for her failure to produce the original copy of the journal by granting leave to re-open the plaintiff’s deposition for an additional two hours to examine the plaintiff about the journal and associated fees and expenses, but denied the defendant’s request for fees and expenses associated with the filing of the instant Motion and denied the defendant’s request for an adverse inference instruction.

Case Background

In this case in which the plaintiff claimed discrimination and improper termination for filing a formal complaint with a Human Resources hotline, the defendant requested (among other discovery requests) any “handwritten note, recorded communications, calendars, journals, diaries, logs, and the like” that related to the matter, but the plaintiff responded on two occasions that she had produced all such documents.  However, at the plaintiff’s deposition on July 13, 2017, she disclosed that she kept a “journal” to document all conversations she had regarding this matter so that she could recall those conversations in the future should the need present itself.  She also testified that she scanned the original copy of the journal and submitted it to her attorney, and then she shredded the original copy and acknowledged that it had not been previously produced.  The plaintiff then produced a scanned copy of the journal two days later, after the completion of her deposition.

About a month later, in August, the defendant filed an instant Motion seeking fees and expenses incurred by having to re-depose the plaintiff and for filing the instant Motion, as well as an adverse inference instruction sanction against the plaintiff.

Judge’s Ruling

Noting that “both Plaintiff and her counsel certified under Rule 26(g) that Plaintiff’s initial disclosures and responses were complete and accurate; however, a ‘minimal inquiry’ by Plaintiff’s counsel would have revealed the existence of the journal and required its production”, Judge Wang stated that “Ms. Mitcham’s failure to disclose the notebook in a timely fashion as part of her Initial Disclosures or in response to written discovery was not substantially justified. Indeed, Ms. Mitcham offers no, and this court cannot itself ascertain, a plausible explanation that Plaintiff was unaware of the notebook or its relevance to this instant action….it appears that Ms. Mitcham was withholding information (whether intentionally or not) that has hindered the progress of discovery”.

With regard to producing a scanned copy of her journal instead of the original, Judge Wang stated: “Plaintiff argues that her shredding the original journal does not constitute destruction, because she ‘kept a journal in the ordinary court of business and transferred it to computerized form as a matter of routine.’…Plaintiff continues that this satisfies the requirements of Rule 34(b)(2)(E), and that she timely supplemented her incomplete discovery responses with the scanned journal…These arguments are unavailing. Plaintiff’s original journal does not constitute electronically stored information; thus, Rule 34(b)(2)(E) is inapplicable. And, as mentioned above, a Rule 26 violation occurred.”

Judge Wang also determined that the plaintiff “abdicated” her duty to preserve by shredding the original, stating “It is clear that Plaintiff retained counsel the day after her termination and that, at this point, had not yet destroyed her original journal. Though Plaintiff stresses the fact that the scanned copy is just as good as the original, I respectfully disagree. First and foremost, there is no way for this court or the Parties to independently confirm that the scanned copy includes all the pages of the original journal. There is also no opportunity for the court or the Parties to determine from the handwriting, the ink, or otherwise if there are timing differences as to when certain entries were written. Therefore, this court concludes that the destruction of the original was unreasonable under the circumstances, because Ms. Mitcham retained counsel prior to shredding the original, and then scanned and sent a copy of the original to Mr. Olsen {her counsel} at his behest.”

As a result, Judge Wang granted (in part) the defendant’s motion for sanctions by granting leave to re-open the plaintiff’s deposition for an additional two hours to examine the plaintiff about the journal and associated fees and expenses, but denied the defendant’s request for fees and expenses associated with the filing of the instant Motion and denied the defendant’s request for an adverse inference instruction, determining that such a sanction is “not warranted at this time”.

So, what do you think?  Should parties be sanctioned for failing to preserve original copies of documents or should the requesting party bear the burden of showing that the copy is not complete?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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.

Avoiding Glittering Generalities in Selecting eDiscovery Software – Considering Cost: eDiscovery Best Practices

Editor’s Note: If you read our blog regularly, you know that we frequently reference my friend and CloudNine colleague Rob Robinson’s excellent blog, Complex Discovery for various industry information, including quarterly business confidence surveys, eDiscovery software and service market “mashups” and information about industry mergers and acquisitions (among other things).  We’ve been discussing aspects of on-premise and off-premise eDiscovery offerings quite a bit lately (including this recent webcast conducted by Tom O’Connor and me a few weeks ago) and Rob has written a terrific article on the subject which he has graciously allowed me to publish here.  This is the fifth part of his multi-part article (parts 1, 2, 3 and 4 here, here, here and here) – we have published it in a series over the past couple of weeks.  Enjoy! – Doug

Considering Cost

“In economics, one of the most important concepts is ‘opportunity cost’ – the idea that once you spend your money on something, you can’t spend it again on something else.” Malcom Turnbull

Budgetary constraints are a common hurdle for law firms and legal departments seeking to address the legal, technological, and business elements of eDiscovery. This economic constraint is compounded by the lack of consistency, predictability, and transparency in the pricing of many software offerings, regardless of whether they are on-premise or off-premise, or based on emerging or mature technologies.

As law firms and legal departments strive to select the best solutions for their particular eDiscovery challenges, it is important for them to be able to compare and contrast the pros and cons of different offerings. While many vendors publicly present detailed offering attributes regarding security, capability, and complexity, many do not share public information on pricing and pricing models. Given the fact that budgetary constraints continue to be one of the leading elements impacting the conduct of discovery, by publicly publishing pricing, vendors can help simplify the eDiscovery decision-making process by removing one of the most common concerns early in the evaluation process. That concern being “how much is this going to cost.”

Additionally, just as many software providers seek to integrate the technology in their offerings to simplify discovery, prudent providers are now combining on-premise and off-premise pricing elements within their overall offering to simplify the software procurement process. An example of this pricing integration is the packaging of an overall solution that contains elements of both on-premise and off-premise offerings available for a prescribed timeframe at a single, understandable, and predictable cost.

Quick Takeaway: Given the fact that most eDiscovery software providers understand the cost of delivering their solutions to the market, it seems reasonable for those in the eDiscovery ecosystem to be able to request and expect to receive simplified pricing from providers. This simplified pricing should account for all elements of a software offering, regardless of whether it is on-premise, off-premise, or a combination of the two. Pricing should also be able to be provided for individual projects or time and volume defined subscriptions, trading length of user commitment for user cost benefits.

So, what do you think?  What factors do you consider when evaluating and selecting eDiscovery software?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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.