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Electronic Discovery

CloudNine Announces New Pricing Models for Simplified eDiscovery Automation Software and Services

New Pay-Per-Use and Subscription Models Help Law Firms and Legal Departments Address Budgetary Constraints Through Pricing Transparency and Predictability

Houston, Texas (PRWEB) May 9, 2017

CloudNine, the eDiscovery Company (cloudnine.com) which provides eDiscovery automation software and professional services for litigation, investigations, and audits, today unveiled its new and simplified eDiscovery pricing models to allow for easier understanding and predictability of the costs of its eDiscovery software and services. The new pay-per-use and volume-based subscription pricing models consist of four plans including pay-as-you-go pricing of $35 per GB per month for core eDiscovery services with no minimum commitment. The new models and plans are available immediately from CloudNine.

“Today’s eDiscovery practitioners are faced with the increasing challenge of doing more work with fewer resources,” shared Doug Austin, Vice President of Operations and Professional Services at CloudNine. “This is even a bigger challenge when one considers the general lack of clarity and transparency in most technology provider pricing structures. With our new pricing models, we have created some of the most understandable and economical pricing available, helping law firms and legal departments better address budgetary challenges by being able to understand, predict, and afford the cost of eDiscovery.”

Pricing Models, Plans, and Services

With its simplified pricing, CloudNine offers customers two business models to support their legal discovery efforts. These models are Pay-Per-Use and Volume-Based Subscriptions. From these two models, CloudNine offers four pricing plans ranging from $35/GB/Month under the Pay-Per-Use model to as little as $12/GB/Month under the Volume-Based Subscription model.

  • Pay-Per-Use Model (Basic Plan): Unlimited Usage with No Commitment
  • Volume-Based Subscription Model (Pro, Plus, and Premium Plans): Purchased Volume Discounts with Six Month Minimum Commitment

CloudNine’s legal discovery pricing plans consist of core services and advanced services. These services include:

Core Services

  • Self-Service Processing
  • Hosting
  • Self-Service Production
  • Outpost Transfer
  • Unlimited CloudNine Users
  • Unlimited Databases (Projects/Subaccounts)
  • Database Setup/Onboarding
  • Early Data Assessment
  • Standard Analytics
  • Filtering/Culling/Deduping
  • Support (24×7 + Online Knowledge Base)
  • Private, Protected Cloud Environment

Advanced Services (Includes Core Services)

  • CloudNine Managed Productions
  • Relativity Hosting

Core Services are available for $35/GB/Month with no minimum commitment under the Pay-Per-Use pricing model. CloudNine also offers Core Service subscription-based pricing beginning at the equivalent of $17.50/GB/Month at the minimum commitment level of six months and decreasing to $12/GB/Month at higher volumes. Additional discounts may be available for multi-year commitments.

Advanced Services are available for $40/GB/Month with no minimum commitment under the Pay-Per-Use pricing model. The $40/GB/Month fee includes ALL Core Services as well as CloudNine Managed Productions and access to Relativity Hosting. Additional per seat user fees may apply for individual users of Relativity. CloudNine also offers Advanced Service subscription-based pricing beginning at the equivalent of $22.50/GB/Month at the minimum commitment level of six months decreasing to $16/GB/Month at higher volumes.

“Simplifying eDiscovery requires simplifying the business of eDiscovery,” highlighted Brad Jenkins, CEO of CloudNine. “Many organizations speak of transparency in pricing, but few achieve the goal of making it easier for customers to consider, compare, and contrast alternative offerings. Our hope is that in our sharing of models, plans, and prices, we truly make it easier for customers to see for themselves why CloudNine is not only the right technology choice for eDiscovery but also the right business choice for eDiscovery.”

In addition to its Core Services and Advanced Services, CloudNine recently introduced a Legal Hold Notification Service that is included in all subscription agreements and available on the Pay-Per-Use plan starting at $500 per hold for up to 10 custodians.  CloudNine also offers a complete portfolio of professional services, making it one of the only advanced generation technology providers with a full professional services team available to help customers simplify their discovery efforts.

Learn More About CloudNine and Simplified Pricing

To schedule a demonstration of CloudNine, sign up for a free trial of CloudNine’s eDiscovery Platform, or to request a discussion about our new pricing models, contact us at 713.462.3885, info[at]cloudnine.com, or at cloudnine.com.

About CloudNine, The eDiscovery Company

Founded in 2002 and based in Houston, Texas, CloudNine is a legal intelligence technology company with deep expertise in the analysis, processing, and review of electronically stored information (ESI). Currently used by more than 50 of the top 250 Am Law firms as well as in many of the world’s leading corporations, CloudNine has been recognized in reports and surveys by Gartner, 451 Research, Blue Hill Research, Corporate Counsel Magazine, the New York Journal, and Texas Lawyer. CloudNine also publishes the eDiscovery Daily Blog, a trusted source of information for the legal industry. A leader in eDiscovery automation, you can learn more about CloudNine at 713.462.3885, info[at]cloudnine.com, or at cloudnine.com.

For more information contact:

Rob Robinson, CMO, CloudNine
PR@cloudnine.com
512.934.7531

CloudsNine_400x400_Transparent

Here’s a Chance to Learn What You Need to Know About Cybersecurity and Data Privacy in 2017: eDiscovery Best Practices

You’ve heard the horror stories. Maybe even experienced them yourselves.  Data breaches are happening within organizations at an alarming rate, and sensitive data is being compromised regularly. As an attorney, what can you do to protect yourself, your firm and your client from becoming a victim? And, what do you need to do to keep up with ever-changing requirements for data security, both within the US and internationally?

On Wednesday, May 31 at noon CST (1:00pm EST, 10:00am PST), CloudNine, along with our friends, the cybersecurity experts at Firm Guardian, LLC, will conduct the webcast What Attorneys Need to Know About Cybersecurity and Data Privacy in 2017.  This one-hour webcast will discuss what you need to know today about cybersecurity and data privacy to protect the sensitive data that your organization manages every day.  Examples of topics being discussed include:

  • The State of Cybersecurity in the U.S. in 2017
  • Top Threats Facing Your Practice
  • Your Responsibility to Your Clients: The High Cost of Data Leaks
  • How to Protect Your Firm and Your Clients
  • Recent Developments in International Data Privacy
  • Criteria for Evaluating Providers in Your eDiscovery Projects
  • Ethics Considerations
  • Looking Forward: The Future of Cybersecurity in the Legal Field

I’ll be presenting the webcast, along with Julia Romero Peter, General Counsel and VP of Sales at CloudNine and joining us from Firm Guardian will be Sean Hall, CEO at Firm Guardian and Paul Cobb, the company’s COO.  The Firm Guardian team has over 30 years of combined experience dealing with foreign and domestic cyber-threats against government and military targets.  So, they have a lot of good information to share to help your organization combat those threats!

To register for the webcast, click here.  Don’t be this firm.

Also, I will be in Chicago on Tuesday, May 23 for the Chicago leg of The Master’s Conference.  The conference will be held at the Wyndham Grand Chicago Riverfront at 71 E Upper Wacker Dr., Chicago, IL 60601.  If you’re going to be in Chicago that day (or close enough to come in for it), you can register here for the full day event (or attend for just half a day, if that’s all your schedule permits).  I will be moderating a panel discussion on Data, Discovery, and Decisions: Extending Discovery From Collection To Creation, at 1:45pm on that day, with panelists Matthew C. Wolfe, Attorney with Shook, Hardy & Bacon, LLP, Ryan Tilot, Counsel, eDiscovery and Information Governance with Seyfarth Shaw and Mykhaylo Bulyk, Manager, Cyber Intelligence & Incident Response with CDK Global.  If you’re in Chicago, hope to see you there!

So, what do you think?  Do cybersecurity and data privacy concerns keep you up at night?  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.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Determines TAR Without Keyword Search Culling First is Preferable: eDiscovery Case Law

In FCA US, LLC v. Cummins, Inc., No. 16-12883 (E.D.  Mich., Mar. 28, 2017), Michigan District Judge Avern Cohn “rather reluctantly” decided a dispute between the plaintiff and defendant on whether the universe of electronic material subject to Technology Assisted Review (TAR) review should first be culled by the use of search terms by agreeing with the plaintiff that “[a]pplying TAR to the universe of electronic material before any keyword search reduces the universe of electronic material is the preferred method.”

Case Background

In this dispute over the allocation of the cost incurred for an auto part that became the subject of a recall, the parties agreed on many issues relating to discovery and particularly electronic discovery.  However, one issue that they couldn’t agree on was whether the universe of electronic material subject to TAR review should first be culled by the use of search terms. The plaintiff took the position that the electronic material subject to TAR review should not first be culled by the use of search terms, while the defendant took the position that a pre-TAR culling is appropriate.

Judge’s Ruling

Noting that the Court decides “rather reluctantly” to rule on the issue, Judge Cohn stated:

“Given the magnitude of the dispute and the substantial matters upon which they agree, the parties should have been able to resolve the discovery issue without the Court as decision maker. Be that as it may, having reviewed the letters and proposed orders together with some technical in-house assistance including a read of The Sedona Conference TAR Case Law Primer, 18 Sedona Con. J. ___ (forthcoming 2017), the Court is satisfied that FCA has the better postion (sic). Applying TAR to the universe of electronic material before any keyword search reduces the universe of electronic material is the preferred method. The TAR results can then be culled by the use of search terms or other methods.”

As a result, Judge Cohn agreed to enter the plaintiff’s proposed order regarding the TAR approach.

So, what do you think?  Should TAR be performed with no pre-search culling beforehand?  Should courts rule on a preferred TAR approach?  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.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Approves Defendant’s Proposed Random Sampling Production Plan: eDiscovery Case Law

In Duffy v. Lawrence Memorial Hospital, No. 14-2256 (D. Kansas, Mar. 31, 2017), Kansas Magistrate Judge Teresa J. James granted the Motion to Modify Discovery Order from the defendant (and counterclaimant), where it asked the Court to enter a protective order directing it to produce a random sampling of 252 patient records, along with five spares, in order to respond to the plaintiff/relator’s document requests.

Case Background

In this case, the plaintiff alleged that the defendant submitted false information to the government to maximize reimbursement for federal medical care programs; in turn, the defendant counterclaimed for breach of contract and fraud.  In a February 2017 order, the Court ordered the defendant to produce documents responsive to certain plaintiff requests in her Second Request for Production of Documents within 14 days.  Defendant produced the most of the requested documents, except for those associated with four requests that were the subject of an instant motion.

As the defendant conducted searches for documents responsive to these requests, it determined that 15,574 unique patient records would have to be located and gathered.  In an effort to calculate the time necessary to locate and produce the relevant patient records, the defendant’s Medical Records department obtained a sample of ten patient records and determined that it would take 30 minutes per record to process and review the records to respond to the four RFP requests.  As a result, the defendant estimated that it would take 7,787 worker hours to locate and produce responsive information for 15,574 patient records, at a cost of $196,933.23.  Redaction of patients’ personal confidential information would take another ten reviewers and one quality control attorney fourteen days at a cost of $37,259.50.  So, the total cost to produce information relevant to the RFPs was estimated to be over $230,000.

Given these costs, the defendant asked the Court to modify its order by limiting the required production to a random sampling of 252 patient records plus five spares, using a statistical tool known at RAT-STATS used by the Department of Health and Human Services Office of Inspector General to randomly select the patient records.  The plaintiff objected, claiming that the defendant did not attempt to meet and confer and also because the Court had already rejected the defendant’s previous contention of undue burden.  The plaintiff also argued that redaction was unnecessary because a protective order was in place to designate the patient info as confidential information.

Judge’s Ruling

With regard to the previous rejection of undue burden, Judge James stated: “Had Defendant presented such evidence in response to Plaintiff’s Motion to Compel, the Court may have found the requests at issue unduly burdensome and disproportional to the needs of the case. Contrary to Plaintiff’s assertion, Defendant did not waive its right to seek protection once the enormity of the task became apparent.”  As for the plaintiff’s objection that the defendant did not meet and confer beforehand, Judge James noted that the “parties conferred following Defendant’s objections to the discovery requests, and that was the point at which some meeting of the minds could have produced a different response by Defendant or an alteration of the discovery request by Plaintiff. At this point, however, Defendant is seeking relief from this Court’s order rather than from a party’s discovery request.”

As a result, Judge James stated: “The Court will modify its order (ECF No. 133) to direct Defendant to utilize RAT-STATS and produce a random sampling of 252 patient records, along with five spares, to respond to RFP Nos. 40, 41, 43 and 58.”  She also directed the defendant to use RAT-STATS (as requested) to randomly select the patient records to be produced and sided with the defendant to redact personal confidential information from the patient records that “Defendant has a legal duty to safeguard.”

So, what do you think?  Is random sampling an appropriate option for cases where production of a larger set may be an undue burden?  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.

Do We Have a Confidence “Spring” in Our Step in 2017?: eDiscovery Trends

The results are in from the Complex Discovery Spring 2017 eDiscovery Business Confidence Survey, which has just concluded and (as was the case for the 2016 Winter, Spring, Summer and Fall surveys and the 2017 Winter survey) 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.  So, to avoid redundancy, 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 Spring 2016 survey.

The Spring 2017 Survey response period was initiated on April 17, and continued until registration of 100 responses on May 3 (this survey was capped at 104). 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 surveySo, in the future, if you want your voice heard, respond early!

Percentage of Provider Respondents Continuing to Rise: Of the types of respondents, 58.6% were either Software and/or Services Provider (44.2%) or Consultancy (14.4%) for over half of respondents as some sort of outsourced provider (over half of total respondents – 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 30.8%.  Corporate responders were a distant fourth with 4.8% of respondents; no other type of respondents was over 3%.  Here’s a graphical representation of the trend over the past four quarters:

When comparing this year’s Winter survey to last year’s survey, it is clear that (despite the continued trend toward a rise in percentage of provider respondents), the survey is (barely) still more diverse than it was a year ago, especially with regard to the percentage of law firm respondents:

Just Over Half of Respondents Consider Business to Be Good: Over half (52.9%, to be exact) of respondents rated the current general business conditions for eDiscovery in their segment to be good, with only 6.7% rating business conditions as bad.  Last quarter, those numbers were 49% and 9% respectively, so this quarter reflects more bullish than last quarter, continuing the trend of up and down quarter over quarter.  Will the summer mean another downturn?  We’ll see.  Here is the trend for the last four quarterly surveys:

When comparing against last year’s Winter survey, respondents this Spring aren’t as bullish as they were a year ago (over 60% rated the current general business conditions for eDiscovery in their segment to be good in 2016).  Of course, the survey was smaller and more provider-centric back then (for what it’s worth):

Almost Everyone Still Expects eDiscovery Business Conditions to be as Good or Better Six Months From Now: Almost all respondents (96.2%) expect business conditions will be in their segment to be the same or better six months from now (well above last quarter’s 86%), and the percentage expecting business to be better jumped back up to 47.1%.  Revenue (at combined 93.3% for the same or better) and profit (combined 93.3%) also rose from last quarter (for the first time ever, half of respondents expect higher profits in six months).  Here is the profits trend for the last four quarterly surveys:

When compared against last year’s Winter survey, the distribution for profits six months from now was way more bullish with a 10.5% increase of respondents expecting higher profits and a 2.5% decrease of respondents expecting lower profits:

Increasing Volumes of Data is Still Most Impactful to eDiscovery Business: Increasing Volumes of Data was the top impactful factor to the business of eDiscovery over the next six months at 25%, with Budgetary Constraints next up at 21.2%.  Lack of Personnel was close behind in third with 20.2%, followed by Data Security (16.3%), Increasing Types of Data (10.6%) and Inadequate Technology (at 6.7%) bringing up the rear.  The graph below illustrates the distribution across the most recent four quarterly surveys.

A year ago, Budgetary Constraints was voted as the most impactful to eDiscovery business, but ever since then, Increasing Volumes of Data has been first or tied for first, so it’s a clear consistent impact on eDiscovery business these days:

Executive Leader Respondents Moving Back Up: Last time, the three groups of respondents were fairly balanced.  This time, Executive Leadership respondents rose again (to 44.2%) and was the clear leader, with Operational Management and Tactical Execution splitting the remaining respondents (at 27.9% each).  Here’s the breakdown of the last four quarters:

Nonetheless, the survey is certainly more distributed than last year, where Executive Leadership was a majority of the responses.  It will be interesting to see what the distribution is in the Summer survey.

Again, Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Check it out.

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

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.

Corporate Counsel Best of 2017 Survey Results: eDiscovery Trends

Last year, we covered the inaugural Best of Corporate Counsel Survey of the top providers to the in-house corporate legal marketplace in July.  This year, Corporate Counsel apparently decided to move it up a bit as, on Monday, it released its Corporate Counsel Best of 2017 results, which (once again) include rankings in a few litigation support and eDiscovery categories.

As they note in their introductory letter, Corporate Counsel Best of 2017 highlights the businesses and individuals who garnered the most votes from members of the in-house legal community.  Voting was conducted via online ballot and limited to those working within in-house corporate legal and compliance departments.  Once again, the ballot consisted of 55 categories and over 1,500 votes were cast.

The survey results start here and span eighteen(!) pages with advertisements interspersed throughout.  Here are the results of some of the notable eDiscovery categories:

END-TO-END LITIGATION CONSULTING FIRM

  1. RVM
  2. CloudNine Discovery
  3. Elite Document Technology

END-TO-END E-DISCOVERY PROVIDER

  1. Elite Document Technology
  2. RVM
  3. CloudNine Discovery

TECHNOLOGY ASSISTED REVIEW E-DISCOVERY SOLUTION

  1. RVM
  2. Elite Document Technology
  3. CloudNine Discovery

DATA & TECHNOLOGY MANAGEMENT E-DISCOVERY PROVIDER

  1. RVM
  2. Elite Document Technology
  3. CloudNine Discovery

DATA RECOVERY SOLUTION PROVIDER

  1. RVM
  2. Ernst & Young, LLP AND Kroll Ontrack
  3. BDO Consulting

LEGAL HOLD SOLUTION

  1. Legal Hold Pro by Zapproved
  2. Exterro Legal Services
  3. Relativity Legal Hold

MANAGED DOCUMENT REVIEW

  1. Elite Document Technology
  2. RVM
  3. Ernst & Young LLP

MANAGED E-DISCOVERY & LITIGATION SUPPORT SERVICE PROVIDER

  1. RVM AND Elite Document Technology
  2. CloudNine Discovery
  3. BDO Consulting

ONLINE REVIEW PLATFORM

  1. Elite Document Technology
  2. Relativity by kCura
  3. CloudNine Discovery

E-DISCOVERY MOBILE APP

  1. Exterro
  2. CasePoint for iPad
  3. APPlied Mobile (LexisNexis Applied Discovery)

LEGAL PROCESS OUTSOURCING

  1. Elevate
  2. Epiq
  3. Discover Ready

INFORMATION GOVERNANCE SOLUTION

  1. RVM
  2. PwC
  3. CloudNine Discovery

PREDICTIVE CODING E-DISCOVERY SOLUTION

  1. Elite Document Technology
  2. Druva
  3. FTI Consulting

LEGAL/LITIGATION SUPPORT STAFFING AGENCY

  1. Robert Half Legal
  2. DTI
  3. Special Counsel

So, what do you think?  Do you agree with the selections or do you have a different favorite provider in any of these categories?  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.

CloudNine Voted as a Leading National eDiscovery Provider in Seven Categories in Corporate Counsel Reader Ranking Survey

Second Annual Best of Corporate Counsel Survey Highlights In-House Community Recognition of CloudNine

Houston, Texas (PRWEB) May 2, 2017

CloudNine, the eDiscovery Company (cloudnine.com) which provides eDiscovery automation software and professional services for litigation, investigations, and audits, today announced its recognition as a leading eDiscovery provider by voters in Corporate Counsel Magazine’s “Best of Corporate Counsel” annual reader ranking survey. 

Corporate Counsel’s Best of 2017 Survey was published in May with the top three responses in each of more than 90 categories shared in the annual survey results. CloudNine was voted as a leading provider in the following reading ranking categories:

  • Best Online Review Platform (3)
  • Best End-to-End E-Discovery Provider (3)
  • Best Technology Assisted Review E-Discovery Solution (3)
  • Best Managed E-Discovery & Litigation Support Service Provider (2)
  • Best End-to-End Litigation Consulting Firm (2)
  • Best Data & Technology Management E-Discovery Provider (3)
  • Best Information Governance Solution (3)

Voting for the survey was conducted online via ballot and limited to those working within in-house corporate legal and compliance departments. In total, over 1,500 votes were cast in this extensive national survey.

“CloudNine is excited and humbled to be recognized by in-house corporate legal and compliance professionals as a national leader in the delivery of eDiscovery software and services,” shared Brad Jenkins, Chief Executive Officer of CloudNine. “We highly value this vote of confidence and are committed to increasing that confidence through a continued focus on delivering discovery automation technology and professional services that simplify eDiscovery.”

Try CloudNine at No Risk, Immediately

To sign up for a free trial of CloudNine, visit the CloudNine website (cloudnine.com), request your free account, and begin immediately to use the power and precision of simplified eDiscovery automation in your litigation, investigation, and audits efforts.

About CloudNine, The eDiscovery Company

Founded in 2002 and based in Houston, Texas, CloudNine is a legal intelligence technology company with deep expertise in the analysis, processing, and review of electronically stored information (ESI). Currently used by more than 50 of the top 250 Am Law firms as well as in many of the world’s leading corporations, CloudNine has been recognized in reports and surveys by Gartner, 451 Research, Blue Hill Research, Corporate Counsel Magazine, the New York Journal, and Texas Lawyer. CloudNine also publishes the eDiscovery Daily Blog, a trusted source of information for the legal industry. A leader in eDiscovery automation, you can learn more about CloudNine at 713.462.3885, info[at]cloudnine.com, or at cloudnine.com.

For more information contact:

Rob Robinson, CMO, CloudNine
PR@cloudnine.com
512.934.7531

CloudsNine_400x400_Transparent

SCOTUS Reverses and Remands Circuit Court Award of Fees for Discovery Misconduct: eDiscovery Case Law

In Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. ___ (2017), the Supreme Court of the United States, in a decision delivered by Justice Kagan reversed and remanded the decision by the US Court of Appeals, Ninth Circuit, for further proceedings, stating that “because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.”

Case Background

In this product liability case, the plaintiffs sued the defendant after their motorhome swerved off the road and flipped over, alleging the accident was caused by the failure of their Goodyear tire.  During discovery, the plaintiffs repeatedly asked the defendant to turn over internal test results related to the tire at issue, but “the company’s responses were both slow in coming and unrevealing in content.”  The parties eventually settled on the eve of trial, then, several months later, the plaintiffs’ counsel learned from a newspaper article that, in another lawsuit involving the tire at issue, it “got unusually hot” at certain speeds.  The defendant conceded withholding the information from the plaintiffs even though they had frequently requested “all testing data” related to the tire.  The plaintiffs sought sanctions for discovery fraud, in the form of payment of their “attorney’s fees and costs expended in the litigation.”

The District Court agreed to make such an award in the exercise of its inherent power to sanction litigation misconduct, and justified its authority to award a greater amount than the expenses caused by the offending behavior because the defendant’s “sanctionable conduct r[ose] to a truly egregious level.”  Ultimately, the court awarded $2.7 million to account for Plaintiffs’ legal costs “since the moment, early in the litigation, when Goodyear made its first dishonest discovery response.”  Acknowledging that the Ninth Circuit might require a link between the misconduct and the harm caused, however, the court also made a contingent award of $2 million. That smaller amount, designed to take effect if the Ninth Circuit reversed the larger award, deducted $700,000 in fees the plaintiffs incurred in developing claims against other defendants and proving their own medical damages. The Ninth Circuit affirmed the full $2.7 million award, concluding that the District Court had properly awarded the plaintiffs all the fees they incurred during the time when the defendant was acting in bad faith.

Court’s Ruling

The court noted that “Federal courts possess certain inherent powers, including ‘the ability to fashion an appropriate sanction for conduct which abuses the judicial process.’…One permissible sanction is an assessment of attorney’s fees against a party that acts in bad faith. Such a sanction must be compensatory, rather than punitive, when imposed pursuant to civil procedures.”  In this case, “[n]either court used the correct legal standard. The District Court specifically disclaimed the need for a causal link on the ground that this was a ‘truly egregious’ case…And the Ninth Circuit found that the trial court could grant all attorney’s fees incurred ‘during the time when [Goodyear was] acting in bad faith,’…—a temporal, not causal, limitation. A sanctioning court must determine which fees were incurred because of, and solely because of, the misconduct at issue, and no such finding lies behind the $2.7 million award made and affirmed below.”

In reversing and remanding the decision, the Court stated: “Although the District Court considered causation in arriving at its back-up award of $2 million, it is unclear whether its understanding of that requirement corresponds to the appropriate standard—an uncertainty pointing toward throwing out the fee award and instructing the trial court to consider the matter anew. However, the Haegers contend that Goodyear has waived any ability to challenge the contingent award since the $2 million sum reflects Goodyear’s own submission that only about $700,000 of the fees sought would have been incurred regardless of the company’s behavior. The Court of Appeals did not address that issue, and this Court declines to decide it in the first instance. The possibility of waiver should therefore be the initial order of business on remand.”

So, what do you think?  Should egregious behavior be subject to an award greater than the expenses incurred by the party affected by that behavior?  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.

Everything You Need to Know about Buying eDiscovery (eDisclosure) Systems: eDiscovery Trends

If you ever wanted to know how many providers there are in the eDiscovery (eDisclosure) space, what services they provide and where they fit in the EDRM model, this is as comprehensive a guide as you can find.

Authored by litigation support and “eDisclosure” (that’s what they call eDiscovery across the pond) expert Andrew Haslam, the eDisclosure Systems Buyers Guide – 2017 Edition provides an overview of key technology considerations, industry approaches and vendor capabilities regarding eDisclosure.  Covering topics from the EDRM Model to vendor service and software analysis, the guide provides a complete and credible resource for legal and IT professionals seeking to understand and apply eDisclosure concepts, processes, techniques, and tools.

The target audience for the Guide are those individuals who understand they have a requirement, but don’t know how to proceed with the next steps. It is assumed that people within organizations that have a litigation support function, will turn to them in the first instance for advice, but might use this document as a primer on what’s available.

The Guide is based on Andrew Haslam’s general experience in the marketplace, also drawing from a number of vendor procurement exercises. The information on firms and software tools has been provided by the organizations themselves, albeit moderated by the author.

The Guide is an impressive 436 page PDF guide, yet is easy to navigate, with a detailed (and linked) table of contents that provides an Executive Summary, Guide Structure, a breakdown of each of the EDRM phases, a description of technology areas, a market survey, a proposed procurement approach in selecting vendors, additional resources and a comprehensive list of service “suppliers” and software providers (101 in all) which comprises the majority of the guide.  If you provide both services and software, you’re listed in both sections.  So, for example, CloudNine (shamless plug warning!) is listed on both page 116 of the PDF (104 of the document) in the services section and 280 of the PDF (268 of the document) in the software section.  Andrew even mentions our blog in the first section!  Thanks, Andrew!

In all seriousness, though, Andrew’s bios for each provider are very comprehensive and many are more than one page.  So, the Guide is more than just a cursory listing of providers, it’s a detailed listing that includes a detailed description of their services, providing the buyer with a terrific head start in understanding what each company does and whether their services and/or software might meet their needs.

Andrew is currently employed as the UK eDisclosure Project Manager for Squire Patton Boggs, so he makes sure to note that all opinion within the Guide is Andrew’s personal viewpoint and does not represent any views, opinions or strategies of Squire Patton Boggs.

So, what do you think?  Are you in the market for an eDiscovery (eDisclosure) provider or solution?  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.

Wife’s Fitbit Leads to Murder Arrest for the Husband: eDiscovery Trends

At both the Master’s Conference session that I moderated in San Francisco on Tuesday and the webcast that I conducted yesterday, the topic of discovery from IoT (Internet of Things) devices came up.  This story illustrates how discovery from IoT devices is becoming more and more important, especially in criminal cases.

According to an article in Business Insider, data from a murdered woman’s Fitbit led Connecticut police to arrest her husband in connection with the death.  After more than a year of investigations, the Hartford police charged Richard Dabate with his wife’s murder, tampering with physical evidence, and making false statements to the police after her Fitbit showed she was still walking around an hour after he claimed she was murdered by an intruder.

In December 2015, Connie Dabate was shot in her home with a .357 Magnum that her husband, Richard, had bought a few months before.  Dabate stated that, after getting a house alarm notification on his phone, he got back around 9 a.m. when he spotted an intruder, he said: a 6’2” man with a stocky build wearing a “camouflaged suit with a mask.”  Dabate said that, at about that time, he heard his wife come home and yelled for her to run, but the intruder shot her to death after a short struggle.  Dabate also said that the intruder tied him to a chair and began burning him with a torch, but he struggled with the intruder, eventually getting the torch from the intruder and causing him to flee.

Cops brought in K-9’s to pick up the scent of an intruder, but they could only pick up Dabate’s scent.  With no other evidence regarding an intruder, cops eventually obtained search warrants for Connie Dabate’s Fitbit, both of their cell phones, computers and house alarm logs.

According to an article in CNN, this timeline of activities conflicted with the story that Dabate told the police:

  • At 9:01 a.m. Richard Dabate logged into Outlook from an IP address assigned to the internet at the house.
  • At 9:04 a.m., Dabate sent his supervisor an e-mail saying an alarm had gone off at his house and he’s got to go back and check on it.
  • Connie’s Fitbit registered movement at 9:23 a.m., the same time the garage door opened into the kitchen.
  • Connie Dabate was active on Facebook between 9:40 and 9:46 a.m., posting videos to her page with her iPhone. She was utilizing the IP address at their house.
  • While she was at home, her Fitbit recorded a distance of 1,217 feet between 9:18 a.m. and 10:05 a.m. when movement stops. If Richard Dabate’s claims were correct, detectives say the total distance it would take the victim to walk from her vehicle to the basement, where she died, would be no more than 125 feet.

Dabate later admitted to having an extramarital affair where he impregnated a woman.  Oh, and five days after the incident, Dabate also attempted to make a claim for his wife’s life insurance policy for $475,000, police said.  He is due to appear in court today.

It seems IoT devices are becoming more and more important to criminal investigations.  It seems like only a matter of time before that becomes the case for civil litigations as well.

So, what do you think?  Have you been involved in any cases where data from IoT devices was at issue?  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.