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Electronic Discovery

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

Dropped Cell Phone Does Not Lead to Spoliation Sanctions Under Amended Rule 37(e): eDiscovery Case Law

In Shaffer v. Gaither, No. 14-00106 (W.D. N.C., Sept. 1, 2016), North Carolina District Judge Max O. Cogburn, Jr. ruled that the sanction of dismissal requested by the defendant for the plaintiff’s lost text messages was disproportionate and denied the defendant’s Motion for Sanctions.

Case Background

The defendant filed an instant motion for dismissal based on destruction of electronically stored information (“ESI”).  The plaintiff contended that she was constructively discharged when she quit her job as an Assistant District Attorney due to sexual harassment by defendant and also claimed that defendant defamed her by telling others that she was fired for having a sexual relationship with a married member of the defense bar (which she admitted, but also contended was a falsely given reason for her termination).

The defendant contended that the text messages were lost in May 2014 when plaintiff dropped the cell phone in a bathroom and lost her text messages (a fact which the plaintiff did not deny) and that at the time the phone was destroyed, plaintiff and her counsel knew of the impending litigation, having threatened litigation in a letter nearly a year earlier, and that litigation was in fact filed the month following the phone’s destruction.  In arguing against dismissal, the plaintiff claimed that these texts were not relevant as the defendant did not read them until sometime after he decided to fire plaintiff (which he admitted, but claimed that his decision to fire the plaintiff came after the paramour’s spouse told him about the texts and the alleged affair).

In her affidavit, the plaintiff indicated that she no longer had the phone or the SIM card because when she broke her phone, she made a claim against her insurance, and her insurer required her to turn in both the broken phone and the SIM card (and the texts were not available from the provider).

Judge’s Ruling

In considering the defendant’s motion for dismissal, Judge Cogburn stated that “[u]nder recently revised Rule 37(e), the duty of a party to preserve ESI arises when litigation is ‘reasonably anticipated’ and the loss of ESI is sanctionable when ‘reasonable steps to preserve’ are not taken and such information cannot be restored or replaced through additional discovery.” However, he also noted that the “sanction of dismissal is not, however, a sanction of first resort” with Rule 37(e)(1) and Rule 37(e)(2) allowing the court “to take action no greater than necessary to cure the prejudice resulting from the loss” and that “Rule 37(e)(2) allows treatment of loss under spoliation only where party acted with an intent to deprive.”

While determining that “plaintiff and her counsel failed to take reasonable steps to preserve those texts as they apparently resided only on plaintiff’s phone”, Judge Cogburn said he “cannot conclude that plaintiff acted with an intent to deprive defendant of the ESI under Rule 37(e)(2); thus, spoliation does not yet come into play.”  However, noting that testimony could determine the content of those texts, Judge Cogburn indicated that the court “has not ruled out a spoliation or modified spoliation instruction, and reserved that for consideration after it has heard the evidence at trial.”

So, what do you think?  Would a dismissal sanction have been granted under the old rules?  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.

Recommind Challenges CAL Patent: eDiscovery Trends

How do you like them apples?  After they were the subject of much scrutiny five years ago regarding their attempt to trademark “predictive coding” (only to eventually abandon it), Recommind (now OpenText after they were acquired) is now challenging the trademark of “continuous active learning” and its acronym, “CAL”.

The Notice of Opposition was filed back in July.  According to ACEDS, Maura Grossman and Gordon Cormack trademarked the terms “Continuous Active Learning” and CAL in 2015, claiming those terms’ first commercial use on April 11, 2013 and January 15, 2014.

In an ACEDS interview earlier in the year, Grossman asserted that “The primary purpose of our patents is defensive; that is, if we don’t patent our work, someone else will, and that could inhibit us from being able to use it. Similarly, if we don’t protect the marks ‘Continuous Active Learning’ and ‘CAL’ from being diluted or misused, they may go the same route as technology-assisted review and TAR.”

In 2011, USPTO signaled that Recommind’s “predictive coding” mark was “too broad” and they instead chose to focus on their patent for technology assisted review (at the time, I compared their unpopular efforts to LeBron James and the Miami Heat and wondered if he would ever win a championship – now, he has three).  Now, five years later, the shoe is on the other foot and Recommind contends in its current challenge that the trademark claims for CAL and continuous active learning should not be granted because they are generic or because they are so highly descriptive that they are incapable of acquiring distinctiveness as trademarks.

At publication time, Recommind was granted an extension by the USPTO due to settlement negotiations.  The current case discovery conference deadline is January 27, 2017, right before Legal Tech New York.  Something to talk about at this year’s show!

So, what do you think?  Will the CAL trademark stand?  Will LeBron James win four championships?  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.

Mary Mack of ACEDS: eDiscovery Trends

During the recent ILTACON conference (wrap-up post about the conference here), I had an opportunity to speak with several thought leaders that are involved with various educational initiatives in the eDiscovery industry, which spurred an idea to conduct a thought leader interview series of leaders within those organizations.  So, I will be publishing interviews with those thought leaders over the next few weeks.  Unlike the annual LegalTech New York (LTNY) interviews, I won’t be publishing a schedule for these (I’m actually still trying to line up a couple of those interviews post-show), but you will see them sprinkled in with regular blog posts over the next few weeks.

Today’s thought leader is Mary Mack.  Mary is ACEDS’ executive director and an eDiscovery pioneer. She is known for her skills in relationship and community building as well as for the depth of her eDiscovery knowledge. Mary is the author of A Process of Illumination: The Practical Guide to Electronic Discovery, considered by many to be the first popular book on eDiscovery. She is the co-editor of the Thomson Reuters West treatise, eDiscovery for Corporate Counsel.

Prior to joining ACEDS, Mary served in a leadership role for ZyLAB, a global provider of e-discovery and intelligent information governance software.  Before that, she was with Fios, Inc. a provider of e-discovery services to Fortune 1000 corporations and major law firms.  Among her professional affiliations, Mary is a member of the Illinois State Bar. She received her bachelor’s degree from Le Moyne College and her law degree from Northwestern University School of Law.

You’ve been Executive Director at ACEDS for about a year now.  What are some of the initiatives that ACEDS has been working on during that first year?

Early in my first year as director of ACEDS, we conducted a beta round for the new exam and the exam was formally released in January.  We also have a new web site, with an expanded interactive membership portal that supports collaboration between ACEDS members and we’re very excited about that.

We have also established partnerships with several organizations, such as EDRM, Women in eDiscovery (WiE), The Masters Conference, Legal Technology Professionals Institute (LTPI) and Complex Discovery.  And, we’re working on other partnerships, including one with ARMA International.  These are all very exciting partnerships for ACEDS and are all valued partners for ACEDS.

ACEDS is now offering an exclusive package of training and certification to ABA members, and a discount on ABA dues to ACEDS members.  ABA members can get both the certification package and the E-Discovery Essentials online training at a very special price.  The ABA will notify its members that these offerings are available and will provide a section on the ABA site for these offerings, which is how the ABA members will be able to trigger the deep discount.  Conversely, ACEDS members will also be able to get a substantial discount on ABA dues.  ABA membership, besides being a wonderful educational and networking opportunity, also provides considerable benefits with regard to health, retirement, various forms of insurance and in other areas at the kind of pricing that only an organization with 350,000 members can offer.

Many people don’t know is that the ABA allows non-lawyers to join.  And, for many of us in the eDiscovery community, it is a wonderful place to learn and contribute and demonstrate expertise.

Since the “center of gravity” for ACEDS has always been certification, where do you see the eDiscovery industry heading with regard to certifications and the demand for professionals to be certified in the marketplace?

I think certification will continue to be more embraced and I’ve already seen signs of that.  Every week, I look in the LinkedIn jobs section and see positions which require CEDS certified eDiscovery specialists.  When I started looking, there were maybe one or two listings requiring CEDS certification – now there are eight or nine.  I expect that to continue to increase, for employers to be expecting their candidates to be CEDS certified as a baseline when coming into their organization.

I’m also seeing that eDiscovery teams that have worked together as a team for a while are looking to certify their teams.  One person on the team may have expertise in collection, another person may have expertise in production, but they don’t quite understand the functional requirements that each other face.  So, to increase the speed and accuracy of team communication, as well as the ability for team members to cover for each other, we’re seeing the teams get certified.  Certification is also a good way for teams to onboard new team members, which gets them up to speed more quickly.

Another area where I’m seeing an increased demand for certification – it totally surprised me at first, but now it makes perfect sense – is in the Sales area.  More sales engineers than ever are getting certified because it gives them a way to communicate with their clients on a level playing field, especially given that many of their potential clients are also certified.  Certification makes sales people more well-rounded, and that enhances their ability to sell.

Is there anything else that ACEDS is doing that you’d like our readers to know about?

There are a few additional things that we’ve been working on. We’ve expanded our educational webinar offerings and capabilities considerably.  I’ve already alluded to E-Discovery Essentials, which is an introductory training course for persons entering eDiscovery, as well as professionals who would simply like to broaden their knowledge of the eDiscovery process, without necessarily going through the formal CEDS certification process (you do receive a certificate for completing E-Discovery Essentials, however).  Both programs give attorneys the tools they need to meet growing eDiscovery competence expectations that we’ve not only seen in California with Formal Opinion No. 2015-193, but also that we are starting to see in several other states, as well.

Thanks, Mary, for participating in the interview!

And to the readers, as always, 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.

You Don’t Have to Move Your Data to Manage it Effectively: Information Governance Trends

When it comes to effective records management of your organization’s data, many people think that the data has to be moved to a centralized location, such as a server or other file share, to be managed effectively.  But, you can also effectively manage that data where it resides with an In-Place Records Management solution.

As discussed by Julie Lintner in RecordLion ( What is In-Place Records Management? ), In-Place Records Management is when the Records Management Solution does not physically move the content to manage it; the content remains it its original location, but the solution is managing the retention policies and overall File Plan for the content.

As Julie notes, many solutions are not architected to use in-place records management, utilizing instead the concept of moving the content so it can be managed.  Unless there is a valid use case for moving records (e.g., transfer them to a specific area for later disposition), moving them could have security and workflow implications.

Julie notes there are many advantages of In-Place Records Management and lists five specific reasons to consider it for your organization, as follows:

  1. Your users can still find their documents in the same place. The users will still search and view the documents the same way; they don’t have to go to a different location or use a different interface to find the documents.
  2. Security does not have to be replicated. The security that you created for your documents is still applicable since the documents will not be moved.  The originating business system is still responsible for the document and controlling the security.  You don’t want to have to re-create a security plan inside your Records Management solution.  It should be noted that the Records Management solution should absolutely have the ability to lock down a record (e.g. make it immutable), but it should be able to do that without moving the record.
  3. Centralized policies. This may not be a standard feature for all solutions with In-Place Records Management, but it should be.  Your policies should be managed in a central location by a single web interface.  This is especially relevant if you have disparate systems.  Your Records Managers should have a single File Plan to manage, and that File Plan should be managed from a single interface.
  4. Your workflow does not have to change. Since the content hasn’t moved, your workflow processes do not have to be updated to incorporate a new location for the documents.  Updating workflows can become an arduous task if you have extensive workflows.  If your documents are being moved, you also need to consider if your existing workflow solution can interface with the new repository.
  5. One solution for all disparate systems. Many large organizations have a variety of repositories in which their data is stored.  If you are forced to move your content to a centralized repository, this can be an overwhelming task and may take many years to complete in a large organization.  In contrast, if your data can remain in-place, then the Records Management Solution can be implemented faster because it doesn’t have to move the data and it will just need to know the location of the data.

Just because the data may be dispersed in various places doesn’t mean it would necessarily make it more difficult to perform data discovery when you may need to collect that data for litigation, audits or other types of investigations.  Technology exists that can support that data discovery on the in-place data.

So, what do you think?  Does your organization utilize an In-Place Records Management 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.

To Be or Not To Be? Not to Be, if Your Search Contains Noise Words: eDiscovery Best Practices

This is an issue that comes up frequently when my clients ask me to review their proposed search terms, or need help in understanding why a particular term doesn’t retrieve the intended result.

When providing searching assistance to my clients and reviewing their proposed list of search terms, one of the considerations I use for evaluating those terms is whether they contain any potential “noise” words that might affect their search results.  Noise words (also known as stop words) are words – such as “to”, “or”, “not”, etc. – which are so common that they are not considered useful in searches.

Search engines rely on indices to find information quickly – these indices are built and updated each time documents are loaded into the database.  To save time, both in creating the indexing and (especially) in performing searches, noise words are not indexed and are ignored in indexed searches. This enables even the most complex searches on the largest databases to be performed quickly and effectively; for example, a search for 30 to 40 terms within a 15 million document database in CloudNine usually takes a matter of seconds to retrieve the results.  I know, because I recently performed several of those searches for a client on their 15 million document database.

The advantage of excluding these words is smaller indexes and improved indexing, and searching, time.  If every “the”, “do”, “can” and “up” was indexed, searching eDiscovery databases would be way slower – painfully slow, in fact.

However, there can be drawbacks to not indexing these noise words.  One disadvantage is that if your searches are typically for common phrases, you may not be able to search with precision and you may either get additional non-responsive results or (even worse) miss some responsive results.

Years ago, I attended a presentation by Craig Ball, where he identified the perfect phrase that illustrates the problems with noise words:

“To Be or Not to Be”

This famous phrase in Shakespeare’s Hamlet would typically not be indexed at all in most search engines – every word in the phrase is a typical noise word.

If a quoted phrase in a search query includes a noise word, the search results may contain results with any word in place of the noise word. For example, a search query for “deed of trust”, might contain documents with the phrases “deed and trust” or “deed under trust” in the search results.

Most search tools can provide a list of the noise words used, so that you can adjust accordingly when constructing your searches.  So, when preparing a list of search terms, it’s important to remember that noise words exist and they could affect your search results.  If you have to search for phrases that contain noise words, you may retrieve some non-responsive hits in those results, so you want to be prepared to review to determine how effective the search was able to retrieve the desired results.  Don’t let noise words drown out your ability to effectively search your collection!

So, what do you think?  Have you encountered issues with noise words in your searches?  How have you addressed those issues?  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.

Florida Becomes First State to Require Technology CLE: eDiscovery Trends

OK, I may have taken a couple of shots at Florida last Thursday over their ballot issues in elections over the years.  However, Florida deserves credit in being the first state to require technology CLE for lawyers.

The rule change, among others proposed by the Florida Bar and ordered by the Supreme Court of Florida on Thursday states:

“We amend subdivision (b) (Minimum Hourly Continuing Legal Education Requirements) to change the required number of continuing legal education credit hours over a three-year period from 30 to 33, with three hours in an approved technology program.”

In that same order, Florida also became the 25th state to order adoption of the duty of tech competence for that state, stating:

“The comment to rule 4-1.1 (Competence) is amended to add language providing that competent representation may involve a lawyer’s association with, or retention of, a non-lawyer advisor with established technological competence in the relevant field. Competent representation may also entail safeguarding confidential information related to the representation, including electronic transmission and communications. Additionally, we add language to the comment providing that, in order to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology.”

The changes become effective on January 1, 2017.

As reported Monday on his Law Sites blog (Florida Becomes First State To Mandate Tech CLE), Bob Ambrogi notes that the mandate was first recommended by the Technology Subgroup of the Florida Bar’s Vision 2016 commission, which was chaired by Vero Beach lawyer John M. Stewart.

“If you are going to be competent in the practice of law, you have to understand technology related to your practice area,” Stewart told The Florida Bar News in 2015. “How do you do that? Through association — you hire an expert to associate with — or through study.”

The change was a surprisingly easy sell, Stewart told Victor Li at the ABA Journal. “I think everyone recognized that lawyers could benefit from more education, both when it comes to technology and in general.”

So, what do you think?  Will other states follow suit and require technology CLE as well?  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 Denies Defendant’s Motion for Production of Documents for In Camera Review: eDiscovery Case Law

In Portland Pipe Line Corp. et. al. v. City of South Portland et. al., No. 15-00054 (D. Maine, Sept. 8, 2016), Maine Magistrate Judge John H. Rich, III denied the defendants’ motion to compel the production of documents withheld or redacted on claims of attorney-client privilege by the plaintiff, finding that the plaintiffs “undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor” and then undertaking a “painstaking manual review to verify the privileged status of every ESI document marked as privileged”.

Case Background

In this case where the plaintiff sued the defendant seeking declaratory and injunctive relief regarding an ordinance prohibiting the loading of crude oil, the defendant brought instant disputes to the court’s attention regarding perceived inadequacy with the plaintiff’s privilege log.  The defendants indicated that they diligently attempted to resolve the instant disputes, emailing letters to the plaintiffs on August 10 and 22, 2016, to which the plaintiffs, in letters emailed on August 15 and 24, 2016, “offered no meaningful response”, forcing them to take the issue to the court.  On August 10, the defendants also advised that, absent further detail, they suspected that the privilege was improperly claimed as to four categories of documents and eventually demanded that the plaintiffs produce all documents withheld on the first three categories within the remaining three categories for the court’s in camera review in determining whether to order that additional detail be provided in the ESI log or documents be produced.

The plaintiffs countered that the defendants pursued a “dilatory and burdensome approach” and raised no concern about the adequacy of a similar hard-copy document privilege log that the plaintiffs had produced on July 14, and that they also failed to define the scope and nature of their complaints about the ESI privilege log sufficiently to enable a particularized response, asserting that the defendants, as the parties pressing discovery disputes, bore the burden of defining the scope of those disputes in such a manner as to permit the plaintiffs an adequate opportunity to respond and the court to rule.  They also flatly declined to undertake a wholesale review of their privilege log, decrying the undue burden of the request in light of the costly and time consuming efforts already taken to create the log and standing by both its adequacy and the viability of their claims of privilege.

Judge’s Ruling

With regard to the argument over the production of the privilege log and noting that the defendants waited until August 30 to seek the court’s aid, Judge Rich stated that “The plaintiffs have the better argument.”  In denying the defendant’s motion, he stated:

“I appreciate that the defendants cannot be certain, in the absence of the requested in camera review, whether documents have or have not been properly withheld. However, I take into consideration the plaintiffs’ counsel’s representation, as officers of the court, that the plaintiffs undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor and then, following the production of more than 100,000 pages of ESI to the defendants on July 29, immediately undertaking a painstaking manual review to verify the privileged status of every ESI document marked as privileged and draft appropriate descriptions for the ESI log. The plaintiffs’ counsel further represent that the plaintiffs executed targeted searches of documents as to which privilege had been claimed to identify those less likely to have been privileged. As a result of those efforts, when the plaintiffs produced their ESI log on August 2, they not only made new claims of privilege as to previously produced documents but also withdrew claims of privilege as to a number of other documents.”

So, what do you think?  Should the in camera review have been allowed?  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.

“Master” Your Knowledge of eDiscovery One More Time – In Our Nation’s Capital!: eDiscovery Trends

Back in May, I was excited and honored to moderate an enjoyable panel session in Chicago at The Masters Conference event there.  Then, we did it again in July in New York City.  Now, we’re doing it again later this month, this time in our nation’s capital, Washington DC!

The Masters Conference brings together leading experts and professionals from law firms, corporations and the bench to develop strategies, practices and resources for managing the information life cycle.  This one will be unique as The Masters Conference will be celebrating its 10th anniversary!  Like the other events, the Washington DC Conference will cover a wide range of topics from CEDS certification prep by ACEDS to the impact of social media and the Internet of Things (IoT) on eDiscovery risks and costs to case and project management and the meaning of cybersecurity to the legal community.

Unlike the other events, the DC event will be a two-day event, held on Tuesday, October 18 and Wednesday, October 19 at the Capital Hilton, 1001 16th St NW, Washington, DC 20036.  Registration begins at 7:30am on Tuesday, with sessions starting at 8:45am.  Sessions run all day Tuesday and Wednesday.

CloudNine will again be sponsoring a session, this time the session is titled 10 Years Forward, 10 Years Back: Automation in eDiscovery, which is the lunch panel at noon on Tuesday.  I am excited to be participating again with a tremendous panel: George Socha – Managing Director, BDO Consulting and Co-Founder of EDRM, David Horrigan – E-Discovery Counsel and Legal Content Director, kCura, Bill Dimm – CEO, Hot Neuron and Bill Speros – Evidence Consulting Attorney, Speros & Associates, LLC.  Mary Mack, Executive Director of ACEDS will be moderator of the session.

The unique session highlights the progress of eDiscovery technologies during the last decade and looks forward through the lens of innovation to the next ten years data discovery, including some of the world’s foremost authorities on eDiscovery who will be sharing their thoughts, considerations, and recommended best practices for the use of Technology-Assisted Review. The session format will allow each expert an opportunity to present followed by a short dialogue. Additionally, the conclusion of this expanded lunchtime session will recognize at a high-level the aggregate recommendations of this expert panel.

Click here to register for the conference.  The cost is only $165 for two full days of sessions – if you register by Tuesday, October 11; otherwise it’s $565(!).  There is also vendor pricing for attendance and having a booth at the conference.

So, what do you think?  Are you going to be in Washington DC on October 18 and 19?  If so, come join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

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

Appeals Court Upholds Default Judgment for Discovery Violations, Including Wiping Files from Laptop: eDiscovery Case Law

In Trude et. al. v. Glenwood State Bank, et. al., Nos. A15-0378, A15-1863, A15-1864 (Minn. App., Aug. 15, 2016), a Minnesota Appeals Court affirmed the trial court’s entry of default judgment for repeated discovery violations, including using data wiping software to permanently delete more than 20,000 files from a laptop just hours before it was turned over for forensic examination.

Case Background

This case originally began when the bank tried to repossess earthmoving equipment and other property in 2011 from one of the parties, which resulted in a lawsuit against the bank by two other parties (Trude and his company JBI, claiming that they owned the property).  A series of counterclaims and third party complaints continued over years of litigation.  The defendant had a contentious discovery history with plaintiffs JBI and Trude, with those plaintiffs not answering the defendant’s interrogatories or document requests for two months after an extended deadline, so the defendant moved to compel discovery and sought sanctions.  JBI and Trude responded to the interrogatories immediately before the hearing on the defendant’s motion, but the court found their response untimely without excuse and sanctioned Trude individually to pay the defendant’s costs in bringing the motion.

The defendant’s discovery conflicts with JBI and Trude continued, and the defendant again sought the court’s involvement. In August 2014, the district court ordered Trude to allow the defendant to take JBI’s business laptop offsite to forensically analyze it. JBI turned the computer over, but the defendant’s forensic analyst determined that, just hours before the laptop was picked up, someone had used data-wiping software to permanently delete more than 20,000 files from the computer.

In November 2014, the court found that Trude intentionally destroyed evidence to keep it out of the defendant’s hands and both JBI and Trude were held in contempt for destruction of evidence and their claims were dismissed. The court also ordered JBI and Trude to show cause for their continued failure to disclose projects the earthmoving equipment was used on and warned them that their Answer could be dismissed if they failed to comply. When they did not, the court ordered their Answer stricken and entered a default judgment against them, noting JBI and Trude’s continued failure to provide timely discovery responses, their intentional attempt to prevent the defendant from knowing the earthmoving equipment’s location, Trude’s repeatedly making contradictory statements and engaging in perjury, Trude’s bad-faith failure to comply with orders, and the destruction of data on the laptop. JBI and Trude appealed.

Appellate Court Ruling

The appellate court stated that “Simply put, Trude’s discovery violations were not isolated and clearly reflect a pattern to obstruct litigation tactically and to avoid disclosure”, noting that the “district court consistently found no justification for Trude’s violations.”  Going further, the court noted in its ruling:

“When the district court first sanctioned Trude on December 20, 2013, it found his failure ‘inexcusable’ and intentional. When it held Trude in contempt, the district court found that he acted in bad faith and flagrant disregard for the court’s order. And when it struck JBI and Trude’s answer, it found that Trude failed to justify the nondisclosure, had acted in bad faith, provided misleading or untrue information, and testified falsely. All of the district court’s findings on Trude’s misconduct, willfulness, and unpersuasive justifications are abundantly supported by the record. For one example, the record informs us that the computer-wiping program had been installed and run at 2:39 a.m. on the morning that Trude turned the laptop over to Glenwood, and the wiping program itself had then been deleted without any disclosure to Glenwood, let alone any justification.”

As a result, the court affirmed the district court ruling.

So, what do you think?  Should the wiping of the laptop alone be enough for a default judgment?  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.

In This Election Season, Contested Elections May Require eDiscovery to Sort Out the Results: eDiscovery Trends

Remember the 2000 Presidential election and all of the issues and headaches that resulted from punch card “butterfly” ballots and “hanging chads” down in Florida?  These days, electronic ballots are more popular.  However, using those electronic ballots doesn’t solve all problems and, if there are disputes, there may be a need for eDiscovery professionals to sort out the results.

This article on Legaltech News (For 2016 Election, Electronic Voting and Discovery May Collide on Complex Terrain, written by Ricci Dipshan) discusses the issues and concerns over this year’s elections and the possibility that eDiscovery may be necessary to evaluate the process.  Certainly, we’ve already seen concerns about the fairness of the process already.  “Both sides of the aisle during the primary were certainly talking about rigged elections, and that talk does continue,” notes Mary Mack, executive director for the Association of Certified E-Discovery Specialists (ACEDS).

These days, Florida uses a mix of paper ballots and touch-screen direct recording electronic (DRE) voting systems, but the DRE voting machines aren’t perfect.  According to data from Verified Voting Foundation, Florida is one of 15 states where some or all of the DRE machines used in elections do not have a voter-verifiable paper audit trail (VVPAT), a printed paper record of a vote that the voter immediately reviews and keeps with election officials.

The accuracy of the DRE voting machines was at issue in a 2006 Florida congressional seat race (why do these always seem to happen in Florida?) where the losing candidate filed a complaint with Florida’s 2nd Judicial Circuit court, alleging that DRE voting machine malfunctions contributed to an undervote of 18,000 ballots and therefore swung the election.  She requested expedited discovery access to the hardware, software and source code of the county’s DRE machines, but the defendants which included state and county officials, refused, evoking ES&S’s trade-secret privilege under Florida’s evidence law.  The judge upheld the privilege and denied the motion for discovery.

“I certainly understand the need to protect trade secrets, but there are methods that we use in litigation to protect trade secrets,” Mack said. “There’s actually a discipline called software forensics, where somebody who is trained can go in and explain what the code is doing. Software forensics is mostly used in patent cases and intellectual property cases, but it could certainly also be used here.”

DRE machines also keep event logs that track activity for each DRE voting machine and could help identify machine malfunctions.  And, as you probably know if you’ve ever voted in any election for government officials, protocols and procedures play an important part too.

In an effort to support these protocols, ACEDS has sent a formal letter to the National Association of Secretaries of States, offering help in the form of “witnesses, collection people, and experts,” Mack said, adding that as the effort is not centralized, “members will be calling into their local county organizations, so I expect that in certain places we will be engaged.”  ACEDS is also currently researching whether it can offer technology, including traditional eDiscovery software and hashing tools to help election workers as well.

While no secretary of state has taken ACEDS up on its offer yet, there is still time.  “For me, [it would be] a wonderful thing if we prepared to do this and then don’t need to”, said Mack.

So, what do you think?  Will we need eDiscovery to sort out election result disputes this November?  Please share any comments you might have or if you’d like to know more about a particular topic.

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