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Electronic Discovery

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

Defendant Not Required to Produce All Documents Responsive to Search Terms: eDiscovery Case Law

Remember earlier this week, when we once again discussed the perils of not checking your wildcard terms before agreeing to them?  This case law summary is a prime example of that.  Perhaps more narrowed search terms would have reduced the review required.  Frankly, I’m surprised more documents weren’t retrieved.

In Bancpass, Inc. v. Highway Toll Administration, LLC, No. A-14-CV-1062-SS (W.D. Tex. July 26, 2016), Texas Magistrate Judge Andrew W. Austin (no relation) denied the plaintiff’s Motion to Enforce Discovery Agreements with regard to the plaintiff’s request for the defendant to produce all non-privileged documents responsive to search terms agreed to over email.

Case Background

In this defamation case between two competing highway toll mechanism companies, the parties, negotiating over email, agreed to produce ESI responsive to the following search terms:

  • Smartphone /50 toll!
  • Smartphone /50 threat
  • Smartphone /10 app!
  • Phone! /10 app!
  • Double /10 bill
  • Geotoll

Slash followed by a number means within that number of words (e.g., /50 = within 50 words).  The ! after a term indicates a wildcard term.

*My own commentary: See terms 3 and 4 above?  They call for the phone related terms within 10 words of any word that begins with “app” (because they’re looking for phone applications or apps, got it?).  As you can see here, there are 306 words in the English language that begin with “app”.  Apparently, it appears that the parties (one of whom may someday be an appellant) appreciated the thought that appending a wildcard after “app” would be an appropriate application of the wildcard in that approach.  OK, a bit extreme, but you get the point – don’t get wild with wildcards!  A simple “(application! OR app OR apps)” would have saved a lot of false hits.

Anyway, the plaintiff stated that it believed the parties agreed that “all non-privileged documents responsive to the additional search terms will be produced,” which it understood to mean that every non-privileged document the search turned up would be produced, regardless of whether it had anything to do with the parties’ dispute and the plaintiff did so in its production.  Conversely, the defendant produced only those documents that it determined were relevant to the case and withheld the rest, which the plaintiff argued was a violation of the agreement.  In response, the defendant stated that it ran the searches as requested, but that the search terms turned up over 20,000 non-privileged but also non-responsive documents. After de-duplicating the search results against previous production and identifying clearly irrelevant documents, the defendant independently reviewed the remaining 3,489 documents for responsiveness and privilege, ultimately producing 34 documents captured by the agreed search terms that were both responsive to the plaintiff’s discovery requests and were non-privileged.

Judge’s Ruling

Ruling on this issue, Judge Austin stated:

“If the Court were to construe the parties’ email correspondence on this topic to constitute a contract, it is likely that HTA’s actions would amount to a breach. The Court’s reading of the e-mail chain is that the parties agreed to produce all of the results of the searches save privileged documents. But the parties’ e-mail exchange is not a contract. Rather, it was a means to simplify and limit the scope of production responsive to BancPass’s requests for production 6, 11, 29, 38, 39, and 45. Having reviewed the attached affidavits detailing HTA’s search and review process there is no reason to believe that HTA has withheld documents it was obligated to produce. Nor is it clear that additional searches with the identified search terms would produce more documents responsive to BancPass’s requests for production. Accordingly, as to the search terms, BancPass’s motion is denied.”

So, what do you think?  Should the defendant have been required to produce all of the responsive, non-privileged documents per the email discussion?  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.

Don’t Miss Today’s Webinar to Hear Expert’s Views on eDiscovery Business Confidence!: eDiscovery Trends

Last week, we covered results from the ACEDS and Complex Discovery Summer 2016 eDiscovery Business Confidence Survey, which was conducted last month with the results published on Rob Robinson’s terrific Complex Discovery site.  Today, you can attend a webinar to hear experts comment on the results of the survey and their thoughts about the state of eDiscovery business in general!

This time, there were 168 total respondents to the survey, which is more than double the number of respondents as the Spring survey.  In fact, there twelve were more respondents than the first two surveys combined.  Obviously, sponsorship from ACEDS and promotion from EDRM, strong>LTPI, Masters Conference, and Women in eDiscovery helped increase the number of respondents dramatically.  The end result is perhaps the most meaningful eDiscovery Business Confidence Survey results yet.

At 1:00 pm ET today (12:00 pm CT, 11:00 am MT, 10:00 am PT), ACEDS will be hosting the webinar (sponsored by CloudNine) regarding the survey.  During this one hour presentation and discussion led by ACEDS Executive Director Mary Mack, expert panelists will share and discuss the results of this quarterly survey. The discussion will feature eDiscovery leaders including:

  • George Socha, Co-Founder of EDRM and Managing Director of Thought Leadership at BDO;
  • Eric P. Mandel, Managing Member at Indicium Law PLC and Member of the Board for LTPI;
  • Zach Warren, Editor in Chief of Legaltech News

And me, of course.  We will not only take a look at this survey in general, we will also break down the results within different response groups (e.g., providers, law firms, corporations, etc.) and compare the results of this survey to those of past surveys to discuss changes in trends.

Click on the link here to register for the webinar.  Hope to see you there!

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.

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

Defendant Receives Terminating Sanctions and More for “Persistent Contemptuous Behavior”: eDiscovery Case Law

In Teledyne Technologies Inc. v. Shekar, No. 15-1392 (N.D. Ill., Aug. 22, 2016), Illinois District Judge Ronald A. Guzmàn, finding that the defendant “has failed to purge himself of contempt for the repeated refusal to comply with this Court’s orders”, entered judgment against the defendant, dismissed his counterclaims, and directed him to pay the plaintiff’s reasonable attorney’s fees and costs incurred as a result of having to pursue relief for the defendant’s “persistent contemptuous behavior”.

Case Background

In this case against a former employee seeking injunctive relief relating to the return of the plaintiff’s property and confidential information following the defendant’s termination, the Court issued a temporary restraining order (“TRO”) in February 2015, finding that the plaintiff “established a substantial likelihood of success with respect to its claims that Shekar, without authorization and in violation of his contractual obligations, misappropriated confidential information and trade secrets from Teledyne; intentionally deleted Teledyne computer files; engaged in deceptive trade practices; interfered with its business relationships; and converted its property, all of which threatened to cause irreparable harm to Teledyne.”  The TRO was replaced with a preliminary injunction (“PI”) in March 2015; a week later, the plaintiff filed a Motion for Rule to Show Cause why the defendant should not be held in contempt for failing to comply with the TRO and PI, which was granted.

After an evidentiary hearing, the Court found the defendant in contempt, and ordered that he purge the contempt by:

  1. produce his home computer and any other devices or electronic storage media accessible to him;
  2. produce at a minimum the three external hard drives connected to the plaintiff-issued laptop on or after his termination date, and either produce or account for the whereabouts of the other eight hard drives or other devices which have connected to the laptop since July 13, 2013;
  3. truthfully and completely answer all interrogatories served upon him in this matter under oath;
  4. turn over, without keeping any copies, all plaintiff’s information including emails and the November 2014 backup files;
  5. explain the nature of the February 3, 2015 data transfer between the plaintiff’s servers and his work laptop, and turn over any such data still accessible to him; and
  6. truthfully divulge the passcode required to access the plaintiff-issued iPhone he previously produced.

The defendant then “engaged in a series of evasions and misrepresentations seeking to vacate or modify the order that he purge himself of contempt”, which included “offensive personal attacks” on the plaintiff’s counsel and even on his own attorneys. The Court eventually ordered the defendant to turn himself in to be detained and committed to the custody of the Bureau of Prisons, but was then contacted by multiple attorneys that the defendant attempted to engage, who notified the court that he had threatened suicide. Even after the court stayed the incarceration order, the defendant still failed to comply with the order to turn over his electronic devices and data, producing a laptop without its original hard drive, an iPhone with only four calls in the call log and a hard drive that had been wiped.

Judge’s Ruling

With the defendant’s history of “manipulations”, Judge Guzmàn stated and ruled, as follows:

“Shekar is clearly in willful contempt. He has been ordered time and again to comply with the Court’s orders and has never manifested the slightest intention to do so. Worse still, he has attempted to deceive the Court at every step of the way. Both before being found in contempt and afterwards, he has displayed a total lack of respect for the truth or the integrity of the legal process. When the Court threatened fines and attorney’s fees, Shekar remained unwavering in his contemptuous behavior. When the Court threatened compulsory imprisonment, Shekar took advantage of the Court’s concern for his well-being — all the while continuing his contemptuous refusal to comply. The Court has paid a high price in the expenditure of time and resources in dealing with Shekar’s persistent misconduct as has the plaintiff. The record is clear that ordinary sanctions have been and will continue to be unavailing, and Shekar leaves the Court with no choice but to impose harsh sanctions, which are not only appropriate, but required.

For the reasons stated above, the Court enters judgment against Shekar on all of Teledyne’s claims, dismisses his counterclaims, and, in addition to the usual bill of costs, assesses Shekar Teledyne’s reasonable attorney’s fees and costs stemming from its arduous efforts in demonstrating Shekar’s contempt.”

So, what do you think?  Were the extreme sanctions deserved?  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.

Sometimes, Your Wildcard May Not Be “Wild” Enough: eDiscovery Best Practices

On the very first day we launched this blog nearly six years ago (next Tuesday is our six year anniversary), one of our first blog posts was called “Don’t Get ‘Wild’ with Wildcards” where we showed how a poorly constructed wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining” actually retrieved over 300,000 files with hits because there are 269 words in the English language that begin with the letters “min” (such as words like “mink”, “mind”, “mint” and “minion”).  Sometimes, though, you have the opposite problem – your wildcard isn’t “wild” enough.

Last week a client of mine provided some search terms to me for review.  One of the searches he proposed included a wildcard term for depreciate* to reflect assets that depreciate.  See any problem with that term?

That wildcard would have picked up variations such as depreciates and depreciated, but would have missed other obvious variations like depreciating and, of course, depreciation.  Oops.

So, how do you find the actual variations of the word you want?  One way, as we noted back in September 2010, is to list all of the words that begin with your search string.  Morewords.com is one site that shows a list of words that begin with your search string.  So, to get all 269 words beginning with “min”, go here – simply substitute any characters for “min” to see the words that start with those characters.  You can choose the variations you want and incorporate them into the search instead of the wildcard – i.e., use “(mine or “mines or mining)” instead of “min*” to retrieve a more relevant result set.

However, if you don’t want to search through 269 words to get the ones you want, or if you picked a place to insert your wildcard character so that all desired terms don’t even display, there’s another way.  As we discussed a couple of years ago, you can use a dictionary.

Dictionary.com, that is.  Type in the word that you want at the top of the form and find all of the uses of it (e.g., the yellow sweater is mine, which tells you not all of the hits may be relevant to mining terms) and also variations of a term (e.g., depreciated, depreciating, depreciation).  You can even find synonyms of the word (e.g., reserve, excavate) on the left hand side of the form (via Thesaurus.com) that might lead to additional terms you may want to include in your search.

Believe it or not, a poorly placed wildcard may sometimes not be “wild” enough.  If you want to make sure you cover all of the variations you need (and only those variations), use a dictionary.

So, what do you think? Do you use wildcards in your eDiscovery searches? If so, how do you check them to ensure that they are neither over-inclusive nor under-inclusive?  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.

Now You Can Weigh in on Principles and Guidelines for Developing and Implementing a Sound eDiscovery Process: eDiscovery Best Practices

The Sedona Conference® has had a busy summer (yes, it’s still technically summer).  Last month, they finalized their guide for “possession, custody, or control” as it’s used in Federal Rules 34 and 45 and also issued a Public Comment Version of a new TAR Case Law Primer.  Now, they have also issued a Public Comment Version of a new Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process, which is a project of its Working Group on Electronic Document Retention and Production (WG1).

As noted in the Preface, the Commentary “represents the culmination of five years of spirited dialogue within WG1 on a number of sensitive topics that go to the heart of what it means to be a competent advocate and officer of the court in an age of increasing technological complexity. It addresses the tension between the principle of party-controlled discovery, and the need for accountability in the discovery process, by establishing a series of reasonable expectations and by providing practical guidance to meet these competing interests. The overriding goal of the principles and guidelines set forth in this Commentary is to reduce the cost and burden typically associated with modern discovery by helping litigants prepare for – or better yet, avoid altogether – challenges to their chosen discovery processes, and by providing guidance to the courts in the (ideally) rare instances in which they are called upon to examine a party’s discovery conduct.”

The preliminary 55 page PDF guide includes an Introduction and the following 13 principles, which are:

  • Principle 1: An e-discovery process is not required to be perfect, or even the best available, but it should be reasonable under the circumstances. When evaluating the reasonableness of an e-discovery process, parties and the court should consider issues of proportionality, including the benefits and burdens of a particular process.
  • Principle 2: An e-discovery process should be developed and implemented by a responding party after reasonable due diligence, including consultation with persons with subject-matter expertise, and technical knowledge and competence.
  • Principle 3: Responding parties are best situated to evaluate and select the procedures, methodologies, and technologies for their e-discovery process
  • Principle 4: Parties may reduce or eliminate the likelihood of formal discovery or expensive and time consuming motion practice about an e-discovery process by conferring and exchanging non-privileged information about that process.
  • Principle 5: When developing and implementing an e-discovery process, a responding party should consider how it would demonstrate the reasonableness of its process if required to do so. Documentation of significant decisions made during e-discovery may be helpful in demonstrating that the process was reasonable.
  • Principle 6: An e-discovery process should include reasonable validation.
  • Principle 7: A reasonable e-discovery process may use search terms and other culling methods to remove ESI that is duplicative, cumulative, or not reasonably likely to contain information within the scope of discovery.
  • Principle 8: A review process can be reasonable even if it does not include manual review of all potentially responsive ESI.
  • Principle 9: Technology-assisted review should be held to the same standard of reasonableness as any other e-discovery process.
  • Principle 10: A party may use any reasonable process, including a technology-assisted process, to identify and withhold privileged or otherwise protected information. A party should not be required to use any process that does not adequately protect its rights to withhold privileged or otherwise protected information from production.
  • Principle 11: Whenever possible, a dispute about an e-discovery process should be timely resolved through informal mechanisms, such as mediation between the parties and conferences with the court, rather than through formal motion practice and hearings.
  • Principle 12: A party should not be required to provide discovery about its e-discovery process without good cause.
  • Principle 13: The court should not decide a motion regarding the adequacy of an e-discovery process without a sufficient factual record. In many instances, such a motion may not be ripe for determination before there has been substantial or complete production.

Principles 1 through 5 are General Principles, 6 through 10 are Specific Applications of the General Principles and 11 through 13 are principles related to Defending the E-Discovery Process.

As usual, the Commentary is free and you can download it here.  The Sedona Conference welcomes input on the Commentary through November 15, 2016. Questions and comments regarding the Primer may be sent to comments@sedonaconference.org.

So, what do you think?  Will these new principles help organizations implement a sound eDiscovery process?  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.

According to Gartner, Machine Learning is at the Peak of Inflated Expectations: eDiscovery Trends

I missed this earlier, but, last month, Gartner published the 2016 edition of its Hype Cycle chart.  Machine Learning is only one of several “smart machine technologies” that will be “the most disruptive class of technologies over the next 10 years”.  But, if you look at the chart closely, you will find that Machine Learning is at the “Peak of Inflated Expectations”.

The report (available here), which “distills insight from more than 2,000 technologies”, says the following regarding smart machine technologies:

“Smart machine technologies will be the most disruptive class of technologies over the next 10 years due to radical computational power, near-endless amounts of data, and unprecedented advances in deep neural networks that will allow organizations with smart machine technologies to harness data in order to adapt to new situations and solve problems that no one has encountered previously. Enterprises that are seeking leverage in this theme should consider the following technologies: Smart Dust, Machine Learning, Virtual Personal Assistants, Cognitive Expert Advisors, Smart Data Discovery, Smart Workspace, Conversational User Interfaces, Smart Robots, Commercial UAVs (Drones), Autonomous Vehicles, Natural-Language Question Answering, Personal Analytics, Enterprise Taxonomy and Ontology Management, Data Broker PaaS (dbrPaaS), and Context Brokering.”

The infographic shown below (have I told you lately how I love infographics?) shows the following phases: “Innovation Trigger”, “Peak of Inflated Expectations”, “Trough of Disillusionment”, “Slope of Enlightenment” and “Plateau of Productivity”.  It also color codes each of the technologies as to the number of years to mainstream adoption (i.e., less than 2 years, 2 to 5 years, 5 to 10 years, more than 10 years and obsolete before plateau).  Sorry folks, self-driving cars (a.k.a., Autonomous Vehicles) are still more than ten years away.  Machine learning is at the top of the curve (i.e., “Peak of Inflated Expectations”) and is predicted to become a mainstream item within two to five years.  Great news, though, in the short term, that means we’re about to head down the “Trough of Disillusionment”.  Oh dear.  Here is the infographic again, full-sized for easier reading:

hypecycle2016

Here is additional commentary from Sharon Nelson of Ride the Lightning and Serdar Yegulalp of InfoWorld.

So, what do you think?  Are the expectations for machine learning technology inflated at this point?  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.

Here’s Your Chance to Hear Experts’ Views on eDiscovery Business Confidence: eDiscovery Trends

Earlier this week, we covered results from the ACEDS and Complex Discovery Summer 2016 eDiscovery Business Confidence Survey, which was conducted last month with the results published on Rob Robinson’s terrific Complex Discovery site (in my post, I focused on trends over the past three surveys to see how the responses have varied from quarter to quarter).  Now, you can hear experts comment on the results of the survey and their thoughts about the state of eDiscovery business in general!

This time, there were 168 total respondents to the survey, which is more than double the number of respondents as the Spring survey.  In fact, there twelve were more respondents than the first two surveys combined.  Obviously, sponsorship from ACEDS and promotion from EDRM, LTPI, Masters Conference, and Women in eDiscovery helped increase the number of respondents dramatically.  The end result is perhaps the most meaningful eDiscovery Business Confidence Survey results yet.

Next Thursday, September 15, ACEDS will be hosting a webinar (sponsored by CloudNine) regarding the survey.  During this one hour presentation and discussion led by ACEDS Executive Director Mary Mack, expert panelists will share and discuss the results of this quarterly survey. The discussion will feature eDiscovery leaders including George Socha, Co-Founder of EDRM and Managing Director of Thought Leadership at BDO, Eric Mandel, Managing Member at Indicium Law PLC and Member of the Board for LTPI and me.  We will not only take a look at this survey in general, we will also break down the results within different response groups (e.g., providers, law firms, corporations, etc.) and compare the results of this survey to those of past surveys to discuss changes in trends.

The webinar will be conducted at 1:00 pm ET (which is 12:00 pm CT, 11:00 am MT and 10:00 am PT).  Oh, and 5:00 pm GMT (Greenwich Mean Time).  If you’re in any other time zone, you’ll have to figure it out for yourself.  Click on the link here to register for the webinar.  Hope to see you there!

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.

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

Court Rejects Discovery for Additional Time Period, But Grants Additional Discovery on Termination Plan: eDiscovery Case Law

In Blodgett et. al. v. Siemens Industry, Inc., No. 13-3194 (E.D. N.Y., Aug. 9, 2016), New York Magistrate Judge A. Kathleen Tomlinson denied the plaintiff’s motion to compel the defendant to respond to the first two requests in its third request for production, but granted the motion regarding the plaintiff’s third request for ESI regarding a division-wide reduction-in-force plan.

Case Background

In this case alleging improper termination, the plaintiffs sued after the defendant allegedly promised them continued employment and then terminated their jobs in April 2013.  Previously, the Court had directed the defendant to produce additional ESI from custodians previously agreed upon by the parties as well as two new custodians, but when the plaintiff filed a motion to compel in July 2015 regarding alleged deficiencies in the defendant’s responses, the Court denied the plaintiff’s motion, without prejudice and with the right to renew, on the grounds that it was not in compliance with Local Rule 37.1.

In its renewed motion, the plaintiffs sought production of additional emails that included a new three-month time frame (October 1, 2012 to December 31, 2012) not previously requested.  The plaintiffs also sought emails related to the rejection of a proposal for an additional sales manager position that the plaintiff argued “refers to Defendant working on a possible reduction of staff in August 2012”.  The defendant claimed that the quote in one particular email (“look at the final territory breakdown. While we worked on this last August, the documents need to be refreshed and double checked”) related to territory breakdowns, not contemplation of a reduction-in-force and one of the custodians (Richard Lattanzi) testified that there were no discussions regarding reduction-in-force in August 2012.  The plaintiffs also requested all documents related to “Project Merlin,” a division-wide reduction-in-force plan, contending that those documents were relevant, and that the defendants had not yet produced any documentation about this project.

Judge’s Ruling

Regarding the first request, Judge Tomlinson, in denying the request, stated:

“Having considered the parties’ arguments in light of these standards, the Court declines to compel Defendant to respond to Request No. 1. As Defendant points out in its opposition, compliance with this document request would require Defendant to search the ESI of all seven custodians using a third set of date parameters (i.e., October 1, 2012 to December 31, 2012) not previously agreed to by the parties or authorized by the Court. Plaintiffs simply have not provided the Court with a basis beyond speculation to believe that relevant information is likely to be uncovered as a result of requiring Defendant to undertake an additional search for the proposed three-month period.”

Judge Tomlinson, also denied the second request as well, stating “In short, Lattanzi’s deposition testimony does not support the additional discovery sought in Request No. 2. To the extent Plaintiffs wished to determine what Schlesinger meant in his March 2013 email and whether that email does, in fact, refer to an August 2012 reduction in force, they could have questioned Schlesinger about the email during his deposition, which was conducted more than four months after Defendant produced the email on April 1, 2014… And although Plaintiffs assert that “Mr. Lattanzi’s deposition revealed additional information that requires supplemental disclosure by Defendant,” Plaintiffs have not identified this alleged “additional information.” Their conclusory statement is insufficient to compel the discovery sought in Request No 2.”

However, Judge Tomlinson, granted the plaintiff’s third request, noting “From the parties’ submissions and their representations of Lattanzi’s deposition testimony, it appears to the Court that Project Merlin was an overarching reduction-in-force encompassing not only Plaintiffs’ group, but other groups within Defendant’s Building Technologies division. The Court therefore finds that documents, information, and correspondence regarding a particular reduction-in-force within Project Merlin which resulted in the termination of Plaintiffs’ employment are relevant and should be produced. However, Plaintiffs are not entitled to discover information about reductions-in-force in other groups/divisions which were affected pursuant to Project Merlin but were unrelated to Plaintiffs’ termination.”

So, what do you think?  Did the Court make the right decisions?  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.

Perhaps the Most Meaningful eDiscovery Business Confidence Survey Results Yet: eDiscovery Trends

The results are in from the ACEDS and Complex Discovery Summer 2016 eDiscovery Business Confidence Survey, which was conducted last month and (as was the case for the Winter and Spring surveys) the results are published on Rob Robinson’s terrific Complex Discovery site.  Are individuals working in the eDiscovery ecosystem still as confident in the business as they were in the first and second quarters?  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 focus on trends over the past three surveys (for the most part) to see how the responses have varied from quarter to quarter.

More Than Double the Respondents: This time, there were 168 total respondents to the survey, which is more than double the number of respondents as the Spring survey.  In fact, there were twelve more respondents than the first two surveys combined.  Obviously, sponsorship from ACEDS and promotion from EDRM, LTPI, Masters Conference, and Women in eDiscovery helped increase the number of respondents dramatically.

Providers Were No Longer the Majority Respondents: Of the types of respondents, 78 out of 168 were either Software and/or Services Provider (32.7%) or Consultancy (13.7%) for a total of only 46.4% of respondents as some sort of outsourced provider (down from 61.9% last time).  Law firm respondents were in a strong second place with 33.9%.  Even the percentage of other respondents (which includes Corporation and Governmental Entity respondents) was up from 11.7% (Winter) to 14.4% (Spring) to 19.7% this time.  Here’s a graphical representation of the trend:

Summer2016-Dist

Less Respondents Consider Business to Be Good: Less than 48% (47.6%, to be exact) of respondents rated the current general business conditions for eDiscovery in their segment to be good, with 13.7% rating business conditions as bad.  Last time, those numbers were 61.8% and 3.9% respectively.  While this (and other) ratings reflect a dip, part of that could be attributable to the greater diversity in respondents (I would expect that providers would typically be more optimistic than the other groups).  Then again, this could be a more realistic reflection of the industry as a whole.  Here is the trend for the first three quarters:

Summer2016-BusCond

Almost Everyone Still Expects eDiscovery Business Conditions to be as Good or Better Six Months From Now: Almost all respondents (97.0%) expect business conditions will be in their segment to be the same or better six months from now (virtually changed from last quarter, though the “better” component dropped from 53.9% to 44.6%).  That wasn’t reflected as much in the revenue and profit projections though, as 91.7% expected as good or better revenue and only 85.7% expected as good or better profits (“lower” reached a high of 14.3%).  Here is the profits trend for the first three quarters:

Summer2016-Profits

Increasing Volumes of Data and Budgetary Constraints Continue to be Considered the Most Impactful to eDiscovery Business: Increasing Volumes of Data (28.6%) was actually considered to be the most impactful to the business of eDiscovery over the next six months, followed very closely by Budgetary Constraints (28.0%, one vote off).  Lack of Personnel (14.3%) rose to third, Inadequate Technology (11.9%) rose considerably to fourth,  Increasing Types of Data (10.1%) staying steady at fifth and Data Security (7.1%) dropping to dead last (it was second and third, respectively, in the first two surveys.  The graph below illustrates the distribution across the past three surveys.

Summer2016-Impact

So, as the survey has become more diverse, the importance of Increasing Volumes of Data and Budgetary Constraints combined has risen from 42.5% in the Winter to 56.6% in the Summer.  On the other hand, the importance of Data Security has dropped by two-thirds, from 21.3% in the Winter to 7.1% in the Summer (the number of respondents that selected data security – 12 – was exactly the same as last time even though the number of respondents more than doubled.  Does that mean that providers place a higher priority on data security than law firms and other respondents?  Maybe.

Level of Support in eDiscovery Business Reflects Considerable Diversity in Responses: A new question we’re covering here shows a virtual even split among type of respondents (based on role), with Executive Leadership and Operational Management tied at 34.5% of respondents each and Tactical Execution close behind at 31%.  In the first two surveys, Executive Management was a majority of respondents with 56.3% and 55.6% respectively.  So, this survey by far reflects the most balanced results based on role.  It will be interesting to see if that trend continues in future surveys.  Here’s that breakdown, quarter by quarter:

Summer2016-Type

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

I’ll be participating in a panel discussion webinar moderated by Mary Mack of ACEDS with George Socha of EDRM also participating as a panelist where we will discuss these trends and others.  Click here to register for that webinar.

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.

Illustrated Observations from ILTACON 2016: eDiscovery Trends

We wrap up our week covering the International Legal Technology Association (ILTA) annual educational conference of 2016 (otherwise known as ILTACON 2016) by discussing some of the observations from this year’s show.  Here are a few observations that I have put together, based on my own experiences and discussions with fellow attendees at the show.

Venue

The show this year was held at the National Harbor Gaylord National Resort & Convention Center in the Washington/Baltimore area.  The venue is sizable, but there were several ILTA placards around the conference which made it easy to find the location for sessions and the exhibit hall quickly.  Session rooms were good sized, though, in a couple of the bigger “Maryland” conference rooms, there seemed to be an acoustics problem and it was hard to hear some of the speakers.  Some of that could be due to speakers not fully speaking into the microphones, but it seemed to be prevalent for all speakers, especially in one session that I attended on Wednesday afternoon.  Nonetheless, the venue was enjoyable with a couple of restaurants in the facility (and several more within walking distance) for breakout meetings over meals, if you chose a different location than the ILTA-sponsored meals.  And, as always, meals were included for conference attendees and there were many taking advantage of that option, as you can see here:

ILTA-6

Environment

As for the ILTACON environment, the show once again included some of the innovations and perks that make it stand out from the rest.  For example:

Laminating Business Cards: ILTACON once again had a station for laminating business cards (with a strap to attach to your bag to differentiate it from others) and it literally takes less than a minute for each card (so, of course, I had two made – one each for my CloudNine and eDiscovery Daily cards).  :o)

Catch Box: As they did last year, ILTACON had the unique “Catch Box” microphone to pass around to audience members for questions or comments.  Clever way to get the microphone passed around more quickly (and with a little bit of fun).

CatchBox

 

ILTACON App: Once again this year, ILTA provided an app that you could download to your iPhone or Android that provided all sorts of information, including maps of the exhibit hall and conference center, an activity feed, agenda for each day with details about the event (including date and time, location, speakers, etc.), details about the speakers and exhibitors and materials to download.  Probably the best show app of any of the shows.

TheFilament.com: Down the hall from the second floor session rooms, there was a big board with instructions to read from several thought provoking questions, put your answer on a post-it note and post it on the board.  The artists this time from TheFilament.com, a team of meeting consultants, then represented those answers in cartoon form.  In addition to the cartoon you see at the top of this post, here are a couple of others in answer to the statement “The thing about legal tech that drives me crazy is…”

ILTA-1ILTA-2

Of course, in a sign of the times (pun intended), the conference needed to set ground rules for any Pokemon GO aficionados in the group…

ILTA-5

Exhibit Hall

This year, there were more exhibitors than last year (195, according to the web site) and the exhibit hall was bigger, which made it seem less crowded.  Exhibitors seemed generally pleased with the traffic and the attendance and one noted that less available distractions than last year (when the show was in Las Vegas) made for more interest and traffic at their booth.

Regarding one participant’s experience, Shawn Gaines, Director of Marketing Communications at kCura, told me: “As always, the community at ILTACON is outstanding.  While there aren’t as many attendees as Legaltech New York, ILTACON’s educational focus makes for really in-depth discussions, particularly with folks we don’t always interact with.  For example, we hosted a CIO Summit and met with a great group of CIOs that we don’t always get the opportunity to garner feedback from and understand their greatest needs.  Booth traffic is always fine, but as a vendor, ILTACON is really all about what you decide to make of it.”

Sessions

As usual, there were numerous sessions (over 170, by my count) and several of them related to litigation support, eDiscovery and information governance (including the ones we covered over the last four days).  So, there was plenty of educational opportunities at the show.  I attended several good sessions, here are a couple that stood out for me:

Preparing an ROI for eDiscovery Services: A Litigation Technology Operations Workshop: The session was hands-on and interactive workshop, enabling attendees to create a simulated return on investment (ROI) analysis for eDiscovery services.  Great idea and great exercise.

Refining Your E-Discovery Reporting: This session walked through a case study covering various phases of the process (from receiving a document request to sampling custodians to discussing metrics for processing, review and production).  Terrific presentation and discussion about eDiscovery metrics.

Extracurricular

Of course, no ILTA experience would be complete without some enjoyable times outside of the conference.  My colleagues and I had a thoroughly fun dinner with Mary Mack and Kaylee Walstad of ACEDS on Monday and an enjoyable lunch discussion with David Horrigan of kCura on Tuesday.  Mary also led me to a wonderful Beer for Bloggers happy hour on Tuesday where I got to meet several interesting bloggers and other folks including Kevin O’Keefe of Lexblog, Gretchen DeSutter of Thomson Reuters and Bob Ambrogi of the Law Sites blog (and others).  Thanks to Lexblog and Thomson Reuters for sponsoring the happy hour – it was great fun to talk blogging, other legal topics and other topics in general!

So, what do you think?  Did you attend ILTACON this year?  What did you think of the conference?  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.