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Electronic Discovery

Court Sanctions Plaintiff for Failing to Preserve Customer Communications: eDiscovery Case Law

Remember Matthew Enterprise, Inc. v. Chrysler Group, where court the granted the defendant’s motion to compel production from the plaintiff’s customer communications database?  Apparently, that production didn’t go so well…

In Matthew Enterprise, Inc. v. Chrysler Group, LLC, No. 13-cv-04236-BLF (N.D. Cal. May 23, 2016), California Magistrate Judge Paul S. Grewal, in one of his last orders before leaving the bench, determined that there was “no question that spoliation has occurred” and granted the defendant’s motion for sanctions for spoliation, “in its entirety, except for the proposed remedy”, opting for a middle ground between the parties’ proposals on what the remedy should be.

Case Background

In this price discrimination dispute between an auto manufacturer and its dealer (which does business as Stevens Creek Chrysler Jeep Dodge Ram), the defendant previously moved to compel the plaintiff to produce emails from the personal accounts of the plaintiff employees (because the plaintiff did not furnish all its employees with email accounts, many of them used their personal accounts for business purposes) and from the plaintiff’s customer communications database operated by an outside vendor.  In December 2015, the court denied the motion with respect to the personal emails but granted the motion with respect to the customer communications database, noting that the plaintiff did have control of that data, having already produced data from this source (we covered that ruling here).

After further investigation, however, the plaintiff discovered that it simply had very few documents to produce.  For example, “around June or July 2013, [the plaintiff] changed email vendors for its corporate-assigned email accounts” and “did not retain…the emails contained on the previous email system.”  In addition, because the outside vendor that maintains and operates the plaintiff’s customer communications database automatically deletes “all records of communication; inbound/outbound email, read receipt notifications and manually entered notes by a dealership representative” after 25 months, effectively all customer communications from the period at issue were lost irretrievably when the plaintiff reached out for that data in July 2015.  The parties did not dispute that the duty to preserve documents attached when the plaintiff sent a litigation threat letter in August 1, 2012.

As a result, the defendant filed an instant motion for sanctions for spoliation, seeking an order precluding the plaintiff from offering testimony or interrogatory responses relating to several topics, including those related to diversion and the effect of the defendant’s incentive program on the plaintiff’s decision to raise prices in August 2012.

Judge’s Ruling

Judge Grewal began his order with the following statement:

“The rules governing parties’ duties to preserve data do not demand perfection. Only when a party should have preserved electronically stored information ‘in the anticipation or conduct of litigation’ and when that party ‘failed to take reasonable steps to preserve it’ may a court order corrective measures.  The standard is an attainable one.”

With regard to the plaintiff’s steps to preserve the information, Judge Grewal stated “There is no question that spoliation has occurred. Stevens Creek does not dispute that it should have preserved the emails and the AVV communications. Stevens Creek took literally no action to preserve the information. And, despite Stevens Creek’s belated best efforts, these communications are lost forever.”

As for whether that spoliation prejudiced the defendant, Judge Grewal noted that “Stevens Creek’s lackadaisical attitude towards document preservation took away” the opportunity for the defendant to ask the jury to decide whether its anecdotal evidence undercut the plaintiff’s statistical evidence.  Because of that, Judge Grewal determined that “[n]ot only has spoliation occurred, but it also has prejudiced Chrysler.”

With regard to the remedy, Judge Grewal opted for a “middle ground” between what the defendant requested (noting that “precluding evidence on diversion would effectively decide the case for Chrysler”) and what the plaintiff proposed “allowing Chrysler to introduce communications, subject to the Federal Rules of Evidence, post-dating the alleged price discrimination period as if they came from that period itself.”  Judge Grewal did adopt the plaintiff’s suggestion, but also ordered that the defendant would be allowed to present evidence regarding the plaintiff’s spoliation when the plaintiff offered certain testimony, that the presiding judge would be allowed to “giv[e] the jury instructions to assist in its evaluation of such evidence or argument,” and that the defendant would be awarded “reasonable attorney’s fees” incurred in bringing the motion.

So, what do you think?  Did the court go far enough with its sanctions of the plaintiff?  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.

Is Search Still Important in eDiscovery? I Say Yes: eDiscovery Best Practices

With the acceptance of predictive coding and other technology assisted review mechanisms growing over the past few years, some feel that keyword search is no longer important as a “key” (pun intended) component of the eDiscovery process.  In a new article published last week, I discussed why search is so important in eDiscovery and why law firms and e-discovery companies need better search solutions.

In Inside Counsel (3 reasons e-discovery companies needs better search solutions), the author (Amanda Cicatelli) sat down with me and also with Jeff Nace, VP of Product Management at ONE Discovery Inc. to discuss these and other topics regarding search in eDiscovery.  Both CloudNine and ONE Discovery (along with several other eDiscovery providers) are customers of dtSearch, a text retrieval engine which is embedded in many of the eDiscovery software platforms available on the market today.  I have personally used dtSearch with a handful of different eDiscovery platforms and it is ideal for supporting even very large multi-million document, multi-terabyte collections with effective and fast information retrieval.

Let’s face it, with the total amount of data being captured and stored by organizations doubling every 1.2 years, the ability to quickly and effectively search through data stores that are growing exponentially has become more important than ever to meet discovery obligations within reasonable costs.  Effective search solutions help manage and control discovery costs to help litigants stay within reasonable budgets.

In the article, Nace and I talk about the reasons that companies need effective search solutions, the recurring problems with eDiscovery and ways to address the issues that companies face when trying to manage the growing sizes and sources of electronically stored information (ESI) out there.  Thanks to Inside Counsel and Amanda Cicatelli for the opportunity to discuss the state of eDiscovery searching today and thanks as well as the folks at dtSearch for coordinating the interview!

You can check out the article here.

So, what do you think?  How effectively does your eDiscovery platform search through large collections of ESI?  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 Settles Dispute Between Parties on Number of Custodians to Search and Produce: eDiscovery Case Law

In Family Wireless #1, LLC et. al. v. Automotive Technologies, Inc., No. 15-01310 (D. Conn., May 19, 2016), Connecticut Magistrate Judge Sarah A. L. Merriam partially granted the plaintiff’s motion to compel the defendant to search and produce ESI from additional custodians, finding that “three of the six proposed custodians’ files are likely to include information relevant to this matter, and defendant has not met its burden of showing that inclusion of these three individuals would be unduly burdensome”.

Case Background

In this action for breach of contract, misrepresentation, unjust enrichment, and unfair trade practices between a franchisor and its franchisee, the parties met and conferred multiple times over the course of this litigation in an effort to come to a mutually agreeable list of ESI search terms and custodians.  The parties agreed to the search of the electronic files of seven custodians, but failed to agree on six additional custodians, leading to the plaintiff’s motion to compel.

The plaintiffs requested the inclusion of six additional custodians in the ESI search, arguing that, even though they were lower level employees, they “are believed to have been involved in both decision making and day to day operations relevant to the claims and defenses raised in the litigation”.  The defendants argued that a search of the emails of these individuals was duplicative and would not produce any relevant information that has not already been exchanged and that searching the files of the additional custodians would be overly burdensome, resulting in tens of thousands of additional documents and hours of costly review, partly based on a test search of two of the proposed custodians that “captured 51,583 e-mail family hits” to be reviewed for relevance.

Judge’s Ruling

Judge Merriam stated that she was “not persuaded that the addition of the six proposed custodians would be unduly burdensome for defendant. As defendant acknowledged during the conference, limitations on search parameters can be implemented so as to exclude the production of duplicative emails, addressing the concern that this production would consist of many emails that had been previously produced through the prior searches of the higher-level custodians. Using ‘de-duplication’ measures to limit the search should alleviate some of the cost and time concerns that defendant raises.”  Judge Merriam also was not swayed by the defendant’s arguments regarding relevance, indicating that “[t]he mere fact that many documents have already been produced is not sufficient to establish that there are no other relevant materials to be found.”

However, while Judge Merriam found “that plaintiffs have established good cause for expanding the ESI search to include three additional custodians”, she found that “no showing of good cause has been made by plaintiffs to search the ESI of the other three proposed custodians” during the in-person Discovery Conference the Court held to discuss the issues.  Therefore, Judge Merriam partially granted the plaintiff’s motion to compel the defendant to search and produce ESI from three additional custodians.

So, what do you think?  Should the court have ordered production from all six custodians?  Or was a partial production appropriate?  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 Determines Granting Defendant’s Motion to Request Overseas Documents is ‘Futile’: eDiscovery Case Law

In Al-Ameri et. al. v. Johns Hopkins Hospital, No. GLR-15-1163 (D.Md. May 26, 2016), Maryland Magistrate Judge Stephanie A. Gallagher denied the defendant’s motion to compel on the basis that compelling the discovery sought would be futile.

Case Background

In this medical malpractice case, the defendant served the plaintiffs with its discovery requests in July 2015.  Although the plaintiffs responded to the defendant’s interrogatories and document requests in October 2015, the defendant contended that the response was insufficient, with all of the disputed discovery requests seek documents that are located in the United Arab Emirates (UAE).

The plaintiffs did not challenge the relevance of the supplemental discovery sought, the defendant’s entitlement to the discovery sought, or that the plaintiffs’ heretofore-provided documents were not sufficiently responsive to the defendant’s requests. Instead, the plaintiffs indicated that they had made good faith efforts to obtain the requested documents from relevant entities in the UAE, but to no avail so far.  The plaintiffs even provided the defendant with authorizations to independently obtain the medical records from the UAE facilities, with plaintiffs’ counsel maintaining that it had “made numerous efforts” to produce itemized lien information from both the UAE hospitals and the UAE embassy.  Nonetheless, after conferring with plaintiffs’ counsel to address the purported deficiencies in the production, the defendant filed an instant motion to compel production.

Judge’s Ruling

Regarding the motion, Judge Gallagher stated:

“The so-called ‘discovery dispute’ regarding these document requests, then, is not really a dispute at all. Plaintiffs concede that they must produce the existing requested documents, but the fact remains that, for over a year, they have tried, and failed, to do so. Thus, as discussed during the status conference call, there is no reason to grant Defendant’s motion as to Requests Nos. 4, 5, 20, and 21, since doing so would be futile. Plaintiffs are not engaging in gamesmanship or withholding information. They acknowledge that the documents are crucial to the case, but are presently unable to obtain them. Compelling these documents would not suddenly change Plaintiffs’ situation or make the documents producible.”  As a result, Judge Gallagher denied the defendant’s motion because compelling the discovery would be futile.

So, what do you think?  Was the court correct to deny the motion?  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.

Is a Blended Document Review Rate of $466 Per Hour Excessive?: Best of eDiscovery Daily

Even those of us at eDiscovery Daily have to take an occasional vacation (which, as you can see by the picture above, means taking the kids to their favorite water park); however, instead of “going dark” for a few days, we thought we would take a look back at some topics that we’ve covered in the past.  Today’s post is our all-time most viewed post ever.  I guess it struck a nerve with our readers!  Enjoy!

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Remember when we raised the question as to whether it is time to ditch the per hour model for document review?  One of the cases we highlighted for perceived overbilling was ruled upon here.

In the case In re Citigroup Inc. Securities Litigation, No. 09 MD 2070 (SHS), 07 Civ. 9901 (SHS) (S.D.N.Y. Aug. 1, 2013), New York District Judge Sidney H. Stein rejected as unreasonable the plaintiffs’ lead counsel’s proffered blended rate of more than $400 for contract attorneys—more than the blended rate charged for associate attorneys—most of whom were tasked with routine document review work.

In this securities fraud matter, a class of plaintiffs claimed Citigroup understated the risks of assets backed by subprime mortgages. After the parties settled the matter for $590 million, Judge Stein had to evaluate whether the settlement was “fair, reasonable, and adequate and what a reasonable fee for plaintiffs’ attorneys should be.” The court issued a preliminary approval of the settlement and certified the class. In his opinion, Judge Stein considered the plaintiffs’ motion for final approval of the settlement and allocation and the plaintiffs’ lead counsel’s motion for attorneys’ fees and costs of $97.5 million. After approving the settlement and allocation, Judge Stein decided that the plaintiffs’ counsel was entitled to a fee award and reimbursement of expenses but in an amount less than the lead counsel proposed.

One shareholder objected to the lead counsel’s billing practices, claiming the contract attorneys’ rates were exorbitant.

Judge Stein carefully scrutinized the contract attorneys’ proposed hourly rates “not only because those rates are overstated, but also because the total proposed lodestar for contract attorneys dwarfs that of the firm associates, counsel, and partners: $28.6 million for contract attorneys compared to a combined $17 million for all other attorneys.” The proposed blended hourly rate was $402 for firm associates and $632 for firm partners. However, the firm asked for contract attorney hourly rates as high as $550 with a blended rate of $466. The plaintiff explained that these “contract attorneys performed the work of, and have the qualifications of, law firm associates and so should be billed at rates commensurate with the rates of associates of similar experience levels.” In response, the complaining shareholder suggested that a more appropriate rate for contract attorneys would be significantly lower: “no reasonable paying client would accept a rate above $100 per hour.” (emphasis added)

Judge Stein rejected the plaintiffs’ argument that the contract attorneys should be billed at rates comparable to firm attorneys, citing authority that “clients generally pay less for the work of contract attorneys than for that of firm associates”:

“There is little excuse in this day and age for delegating document review (particularly primary review or first pass review) to anyone other than extremely low-cost, low-overhead temporary employees (read, contract attorneys)—and there is absolutely no excuse for paying those temporary, low-overhead employees $40 or $50 an hour and then marking up their pay ten times for billing purposes.”

Furthermore, “[o]nly a very few of the scores of contract attorneys here participated in depositions or supervised others’ work, while the vast majority spent their time reviewing documents.” Accordingly, the court decided the appropriate rate would be $200, taking into account the attorneys’ qualifications, work performed, and market rates.

For this and other reasons, the court found the lead counsel’s proposed lodestar “significantly overstated” and made a number of reductions. The reductions included the following amounts:

  • $7.5 million for document review by contract attorneys that happened after the parties agreed to settle; 20 of the contract attorneys were hired on or about the day of the settlement.
  • $12 million for reducing the blended hourly rate of contract attorneys from $466 to $200 for 45,300 hours, particularly where the bills reflected that these attorneys performed document review—not higher-level work—all day.
  • 10% off the “remaining balance to account for waste and inefficiency which, the Court concludes, a reasonable hypothetical client would not accept.”

As a result, the court awarded a reduced amount of $70.8 million in attorneys’ fees, or 12% of the $590 million common fund.

So, what do you think?  Was the requested amount excessive?   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.

Can You Figure Out How I Wrote this Blog Post?: Best of eDiscovery Daily

Even those of us at eDiscovery Daily have to take an occasional vacation (which, as you can see by the picture above, means taking the kids to their favorite water park); however, instead of “going dark” for a few days, we thought we would take a look back at some topics that we’ve covered in the past.  Today’s post takes a look back at a little experiment I performed (which was two phones ago for me, by the way).  Enjoy!

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I have to be honest, this blog post contains quite a bit of content from one of the early posts from this blog.  However, there is something different about this version of the content – it looks a bit unusual.  Can you figure out how I wrote it?  See if you can figure it out before you get to the bottom.  I promise I haven’t lost my mind.

Types of exceptions file

It’s important to note that efforts to quote fix quote these files will often change the files parentheses and the meta data associated with them parentheses, so it’s important to establish with opposing counsel what measures to address the exceptions are acceptable. Some files may not be recoverable and you need to agree up front how far to go to attempt to recover them.

  • Corrupted files colon files can become corrupted 4 a variety of reasons, from application failures 2 system crashes to computer viruses. I recently had a case where 40 percent of the collection what’s contained in to corrupt Outlook PST file dash fortunately, we were able to repair those files and recover the messages. If you have read Lee accessible backups of the files, try to restore them from backup. If not, you will need to try using a repair utility. Outlook comes with a utility called scan PST. Exe that scans and repairs PST and OST file, and there are utilities parenthesis including freeware utilities parenthesis available via the web foremost file types. If all else fails, you can hire a-data recovery expert, but that can get very expensive.
  • Password protected files colon most collections usually contain at least some password protected files. Files can require a password to enable them to be edited, or even just to view them. As the most popular publication format, PDF files are often password protected from editing, but they can still be feud 2 support review parenthesis though some search engines May fail to index them parenthesis. If a file is password protected, you can try to obtain the password from the custodian providing the file dash if the custodian is unavailable or unable to remember the password, you can try a password cracking application, which will run through a series of character combinations to attempt to find the password. Be patient, it takes time, and doesn’t always succeed.
  • Unsupported file types corn in most collections, there are some unusual file types that art supported by the review application, such as file for legacy or specialized applications parenthesis E. G. AutoCAD for engineering drawing parenthesis. You may not even initially no what type of files they are semi colon if not, you can find out based on file extension by looking the file extension up in file ext. If your review application can’t read the file, it also can’t index the files for searching or display them 4 review. If those file maybe responses 2 discovery requests, review them with the natives application to determine they’re relevancy.
  • No dash text file colon files with no searchable text aren’t really exceptions dash they have to be accounted for, but they won’t be retrieved in searches, so it’s important to make sure they don’t quote slip through the cracks unquote. It’s common to perform optical character recognition parenthesis Boosie are parenthesis on Tiff files and image only PDF files, because they are common document 4 minutes. Other types of no text files, such as pictures in JTAG or PNG format, are usually not oser, unless there is an expectation that they will have significant text.

Did you figure it out?  I “dictated” the above content using speech-to-text on my phone, a Samsung Galaxy 3 (yes, that was three years and four versions ago, I will have to update the “experiment” soon to see if the speech-to-text is any better now on my Apple iPhone 6).  I duplicated the formatting from the earlier post, but left the text the way that the phone “heard” it.  Some of the choices it made were interesting: it understands “period” and “comma” as punctuation, but not “colon”, “quote” or “parenthesis”.  Words like “viewed” became “feud”, “readily” became “read Lee” and “OCR” became “Boosie are”.  It also often either dropped or added an “s” to words that I spoke.

These days, more ESI is discoverable from sources that are non-formalized, including texts and “tweets”.  Acronyms and abbreviations (and frequent misspelling of words) is common in these data sources (whether typed or through bad dictation), which makes searching them for responsive information very challenging.  You need to get creative when searching these sources and use mechanisms such as conceptual clustering to group similar documents together, as well as stemming and fuzzy searching to find variations and misspellings of words.

Want to see the original version of the post?  Here it is.

So, what do you think?  How do you handle informal communications, like texts and “tweets”, in your searching of ESI?   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.

InsideCounsel Highlights 3 Reasons eDiscovery Companies Need Better Search Solutions

Extract from InsideCounsel article by Amanda Ciccatelli

With the amount of data being captured and stored by organizations doubling every 1.2 years, the ability to quickly and effectively search through data stores that are growing exponentially has become more important than ever to meet discovery obligations within reasonable costs.

There are three key reasons that law firms and e-discovery companies need better search solutions, according to [Doug] Austin [of CloudNine]. First, the ability to identify potentially relevant information in litigation quickly is key to determining the best course of action to proceeding in the case, and effective search is an important component to accomplishing that goal. Second, failure to preserve or produce clearly responsive electronically stored information (ESI) in litigation can lead to sanctions by the court.  And third, in a recent survey, budgetary constraints was identified as the factor to have the most impact on e-discovery business over the next six months, so search solutions help manage and control discovery costs to help litigants stay within reasonable budgets.

Austin shared three ways to address these issue including: Emphasize up-front information governance efforts to keep data volumes manageable and also identify all potential sources of data through an organization data map; emphasize automation of repeatable tasks within the discovery life cycle and select providers who can support that automation effort and help the organization reduce costs through reduction of personnel; and require their providers to offer predictable pricing models so that they can accurately estimate costs.

Source: Inside Counsel

For the complete article, click here.

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Data May Be Doubling Every Couple of Years, But How Much of it is Original?: Best of eDiscovery Daily

Even those of us at eDiscovery Daily have to take an occasional vacation (which, as you can see by the picture above, means taking the kids to their favorite water park); however, instead of “going dark” for a few days, we thought we would take a look back at some topics that we’ve covered in the past.  Today’s post takes a look back at the challenge of managing duplicative ESI during eDiscovery.  Enjoy!

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According to the Compliance, Governance and Oversight Council (CGOC), information volume in most organizations doubles every 18-24 months (now, it’s more like every 1.2 years). However, just because it doubles doesn’t mean that it’s all original. Like a bad cover band singing Free Bird, the rendition may be unique, but the content is the same. The key is limiting review to unique content.

When reviewers are reviewing the same files again and again, it not only drives up costs unnecessarily, but it could also lead to problems if the same file is categorized differently by different reviewers (for example, inadvertent production of a duplicate of a privileged file if it is not correctly categorized).

Of course, we all know the importance of identifying exact duplicates (that contain the exact same content in the same file format) which can be identified through MD5 and SHA-1 hash values, so that they can be removed from the review population and save considerable review costs.

Identifying near duplicates that contain the same (or almost the same) information (such as a Word document published to an Adobe PDF file where the content is the same, but the file format is different, so the hash value will be different) also reduces redundant review and saves costs.

Then, there is message thread analysis. Many email messages are part of a larger discussion, sometimes just between two parties, and, other times, between a number of parties in the discussion. To review each email in the discussion thread would result in much of the same information being reviewed over and over again. Pulling those messages together and enabling them to be reviewed as an entire discussion can eliminate that redundant review. That includes any side conversations within the discussion that may or may not be related to the original topic (e.g., a side discussion about the latest misstep by Anthony Weiner).

Clustering is a process which pulls similar documents together based on content so that the duplicative information can be identified more quickly and eliminated to reduce redundancy. With clustering, you can minimize review of duplicative information within documents and emails, saving time and cost and ensuring consistency in the review. As a result, even if the data in your organization doubles every couple of years, the cost of your review shouldn’t.

So, what do you think? Does your review tool support clustering technology to pull similar content together for review? 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.

No Victory Laps on Social Media: eDiscovery Trends

This is the second time this month I’ve covered a “social media gone wrong” story (here was the previous story I covered), but I just couldn’t ignore this story.

As covered by the ABA Journal (Clients drop firm after lawyer uses Twitter to celebrate ‘win’ against parents of disabled children, written by Martha Neil), a British law firm suffered a sudden loss of business over the last few days, after a series of tweets by a founding partner who serves as its managing director ignited a firestorm.

Mark Small of Baker Small heads a law firm known for its leading niche representation of local government councils defending against claims by parents seeking “special educational needs” funding for disabled children.  However, Small was perceived as “gloating” over a lack of funding for disabled children by a number of observers. They pointed to a tweet about “a great ‘win’ last week which sent some parents into a storm!” and a tweet apparently responding to criticism that included a photo of a kitten and said Baker had received “great tweets” and had “just shared them with my cat,” the newspaper reports.

By Sunday, with parents lobbying their own local authorities not to hire Baker Small again, the firm began to apologize for the tweets that upset the parents, deleting the tweets and flooding its Twitter feed with re-tweets that supported parents.

However, it may already be too late to reverse the damage.  At least eight local authorities, nearly half of the twenty represented by Baker Small in special-education cases have said they have either suspended their contracts with the firm or said they intend to do so, the Guardian reports.

When it comes to the ability to reach the world through social media posts, it’s important to remember that with great power comes great responsibility.  Victory laps on social media are often not a good idea.  Just ask this daughter of a laid off school administrator who told the world on Facebook to “SUCK IT”, costing her father an $80,000 discrimination settlement.

So, what do you think?  Have you ever made a social media post that you regretted?  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.

Former IT Administrator Found Guilty for Deleting Files, Faces Possible Jail Time: eDiscovery Trends

Last month, we covered the case of a former IT administrator who was charged with hacking into the computer system of his former employer and deleting files.  Here’s a case where another former IT administrator was found guilty by a Texas jury for deleting files – while still employed by the company – and faces possible jail time!

As covered by Wired (A Texas Jury’s Guilty Verdict Should Worry IT Admins, written by Andy Greenberg), last week, a jury in the trial of 37-year-old Michael Thomas found him guilty of violating the Computer Fraud and Abuse Act, a verdict with a maximum sentence of 10 years in prison and up to $250,000 in restitution payments.  However, in this case, he’s accused of deleting a collection of his employer’s files before leaving his job as a systems administrator at the auto dealership software firm ClickMotive in 2011.

As Thomas’ lawyer Tor Ekeland has pointed out, Thomas wasn’t charged with the usual CFAA violation of “unauthorized access” or “exceeding authorized access,” but rather “unauthorized damages”.  Thomas’s guilty verdict, argues Ekeland, is “dangerous for anyone working in the IT industry. If you get in a dispute with your employer, and you delete something even in the routine course of your work, you can be charged with a felony.”

Prosecutors, on the other hand, called the case a victory. “The jury’s verdict in this case sends an important message to IT professionals everywhere: an employee in the defendant’s position holds the proverbial keys to the kingdom and with that power comes great responsibility,” wrote U.S. Attorney Bales in a press statement. “Intentionally causing damage to a computer system without authorization is a criminal act that can and will be prosecuted.”

During the trial, the prosecution presented evidence that Thomas intentionally harmed ClickMotive by combing through executives’ email, tampering with the network’s error-alert system, and changing authentication settings that disabled the company’s VPN for remote employees. He also deleted 615 backup files and some pages of an internal wiki.  ClickMotive claimed that those changes caused $140,000 in damages as they struggled to determine the extent of Thomas’s tampering.

The defense detailed at trial how Thomas went into the company’s offices the weekend before he quit—just days after layoffs—to help defend the company against a denial-of-service attack on its website and to repair a cascading power outage problem. And the 615 backup files he deleted were all replicated elsewhere on the network.  Ekeland also points out that the prosecution never entered Thomas’s employment agreement as evidence, and yet used that agreement to define the “unauthorized damages” that constitute his crime. “There was not a single communication produced at trial, a single written document that showed he wasn’t authorized to do what he did,” says Ekeland. “After the fact, your boss says ‘that wasn’t authorized,’ you violated an unwritten policy, and bang, you’re hit with a felony.”

Thomas’s defense team says they plan to ask the judge in the trial to overrule the jury under a Rule 29 motion, and if that fails, to seek an appeal.

So, what do you think?  Should IT administrators be held criminally liable for deleting employer files?  Or should their liability be limited to civil damages?  Please share any comments you might have or if you’d like to know more about a particular topic.

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