Ethics

Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was published yesterday.  Here’s the second part.

Why is the Lack of Technology Expertise among Lawyers Important?

To answer that question, we need to take a look at the current situation in terms of what we’re trying to accomplish with eDiscovery, whether knowledge of that is important and what do we need to do to change.

a. What Is the Goal of eDiscovery?

FRCP 1 makes the immediate goal of eDiscovery quite clear.

Rule 1. Scope and Purpose

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. (my emphasis added)

In that vein, Ron Friedmann once wrote a thought-provoking post entitled E-Discovery Goal: Win or Avoid Disaster?  in which he posed the theory that lawyers have forgotten the real goals of eDiscovery, which he said were:

A. Achieve the best outcome for the client

B. Minimize cost

C. Learn the facts of the case

D. Prepare offense or defense

E. Fulfill obligations to produce documents

b. What we do is important

But in addition to a legal and ethical obligation to perform efficiently, what we do in our work is important. I once spoke on a CLE panel with well-known ESI commentator Michael Arkfeld and he remarked that these are exciting times because for the first time we are seeing a true intersection of technology and the law.

But a speech I gave with Mary Mack, the CEO of ACEDS, was one that I remember because at the end of it, we were asked by an audience member “why should I go to law school’? My response was “Because what we do is important’!

Consider the US Judicial System for a moment. Modern human civilization has been in existence for roughly 44,000 years: Greek democracy began in 500 BC, the Magna Carta was signed in 1215 AD, the Enlightenment flourished from 1660-1780 AD with perhaps it’s crowning achievement, the American Revolution, occurring in 1776.

But our system of justice began with a document that says “we the people”.  It depends on confidence by the people that they system is working. Yet while 70% of poor households have a legal problem in any given year, only 4% consult a lawyer. 60% of middle classes with a legal problem don’t consult a lawyer because of cost.

A 2014 Gallup poll showed more people had confidence in our military than the criminal justice system.

But a more recent (2017) State of State Courts report by the National Center for State Courts found that 71% of respondents had overall confidence in their court system.

Although an equal number felt the courts were too complicated to navigate without an attorney.

Those statistics have remained fairly constant for over a decade and I would assert that what we are doing in the increasingly technical world of eDiscovery is crucial to keeping that confidence level intact.

c. Are We Stuck?

Ralph Losey once called the lack of technical understanding by attorneys as a “paper prison”. Ken Withers, Deputy Executive Director of The Sedona Conference, said something similar once as a keynote speaker Georgetown University 5th Annual Advanced E-Discovery Institute Program, when he stated too many attorneys think in the old paper based paradigm instead of progressing to become what he called the “protodigital lawyer.”

So, how do we change? How do we escape the paper prison?  We’ll publish Part 3 – How Can we Change the Situation? – tomorrow.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

Law firms today possess technology tools which have been proven to save time and money while simultaneously improving quality within the discovery process. Two thirds of the states have enacted rules which impose lawyer’s ethical duty to understand technology. And, case after case shows judicial endorsement of both of these concepts.

Why is it, then, that surveys continue to show that many lawyers have yet to embrace these new technologies and approaches? The latest survey on legal trends by Ari Kaplan reveals that many lawyers are still not sufficiently up to date with legal tech to make informed decisions about where to focus their firm’s resources and staff’s attention.  Several years ago, the results of the ILTA Law Department Survey reported a degree of technology usage that Ron Friedmann, in reporting on the survey, described as both “shocking” and “frightening”.  The survey released in Dec. of 2017 still showed problems, with 50% of the respondents using Windows 7 on their desktops and only 40% using a cloud-based email system.

Have these technological delays impacted law firms’ relationships with clients?  The 2018 Zapproved Corporate eDiscovery Benchmarking Report found that “… corporate legal departments prioritize streamlining and modernizing operations as a top priority…” .  Are outside counsel firms meeting this standard?  Not according to the EDRM/Exterro 2018 In-House Legal Benchmarking Report, which found that almost 70% of legal teams conducted most of their litigation services in-house compared to 50% last year.

Why is this? As long ago as 2009, Judge John Facciola said in a keynote address at LegalTech New York that “…attorneys are lacking in technology skills not from ignorance but stubbornness.” He elaborated that they simply aren’t taking the time to learn the basics of handling electronic data and, as a result, they don‘t really know what is important and what is just marketing fluff.

Has that changed in the past 10 years? When I asked that question recently of a currently sitting Federal court judge, he replied: ”marginally”.

In this paper, we will examine the situation more closely and ask several questions:

  1. Why is the lack of technology expertise among lawyers important?
  2. How can we change the situation?
  3. What are some good resources to help lawyers improve their technology expertise?
  4. What can we do to help lawyers become technologically proficient?

We’ll publish Part 2 – Why is the Lack of Technology Expertise Among Lawyers Important? – on Monday.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

There’s a Trip of a Lifetime Available at One Firm for Employees Who Can Get Partners to Embrace Tech: eDiscovery Trends

One of the biggest hurdles from a legal technology standpoint is getting people, especially highly experienced (i.e., “old”) partners to embrace the technology.  One firm has not only tried to commit to changing that, they have “put their money where their mouth is”.

As discussed in Above the Law (Biglaw Firm Offering $100K+ For Employees Who Can Convince Old Partners To Use Tech, written by Joe Patrice), Wilson Sonsini has set aside $100K in travel awards (plus the appropriate tax gross ups) to employees who can successfully get the firm to adopt their new technologies. The firm recently sent out a memo seeking bids from “Special Ops” groups with a plan to bolster adoption with a hefty prize at the end when and if those groups meet their targets.

As Wilson’s Corporate Strategic Innovation Counsel, David Wang put it:

“Our core business is representing the most innovative companies in the world. This initiative is one example of a comprehensive effort to deliver value to clients by using the most efficient and innovative business processes and technologies.”

This is not only smart from a standpoint to establish tech adoption within the firm, it’s also a great way to communicate commitment to technology to clients and prospective clients of the firm.  If they can get a couple of publications to pick up on the story to provide free publicity, even better.  Oh wait, they just did… :o)

So, what do you think?  What does your firm do to promote adoption and use of technology inside the firm?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Could We Be Close to a Second State to Approve a Technology CLE Requirement?: eDiscovery Trends

In 2016, Florida became the first state to mandate technology training for lawyers, when it adopted a rule requiring lawyers to complete three hours of CLE every three years “in approved technology programs.”  We covered it here.  That requirement went into effect on January 1, 2017 and CloudNine has certainly been providing several CLE courses that are technology approved in Florida.  We’ve been wondering when a second state was going to follow suit and we may be close to an answer.

According to Robert Ambrogi and his Law Sites blog (A Second State Moves Closer to Mandating Technology Training for Lawyers), the North Carolina State Bar Council has approved a proposed amendment to lawyers’ annual CLE requirements that would mandate that one hour of the required 12 hours of CLE training annually be devoted to technology training.

The council adopted the proposed amendment on April 20. The proposed amendment now goes to the North Carolina Supreme Court for approval.

The proposed amendment would also add a definition of technology training, as follows:

“Technology training” shall mean a program, or a segment of a program, devoted to education on information technology (IT) or cybersecurity (see N.C. Gen. Stat. §143B-1320(a)(11), or successor statutory provision, for a definition of “information technology”), including education on an information technology product, device, platform, application, or other tool, process, or methodology. To be eligible for CLE accreditation as a technology training program, the program must satisfy the accreditation standards in Rule .1519 of this subchapter: specifically, the primary objective of the program must be to increase the participant’s professional competence and proficiency as a lawyer. Such programs include, but are not limited to, education on the following: a) an IT tool, process, or methodology designed to perform tasks that are specific or uniquely suited to the practice of law; b) using a generic IT tool process or methodology to increase the efficiency of performing tasks necessary to the practice of law; c) the investigation, collection, and introduction of social media evidence; d) e-discovery; e) electronic filing of legal documents; f) digital forensics for legal investigation or litigation; and g) practice management software. See Rule .1602 of this subchapter for additional information on accreditation of technology training programs.

However, as Kevin O’Keefe notes in his Real Lawyers blog (via a tweet by Richard Granat), the same North Carolina has just passed regulation restricting the distribution of self-help legal software over the Internet.  Go figure.

Regardless, I will be very interested to see what happens in the state that I’m now spending a lot of my time (because of our recent acquisition, of course).

So, what do you think?  Will we see more states require technology CLE?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

It’s E-Discovery Day! Here are Some Great Webcasts to Check Out Today!: eDiscovery Best Practices

It’s December 1st, which can only mean one thing – it’s E-Discovery Day 2017!  This (now third) annual event includes a combination of webcasts and in-person events to promote discussion and education of eDiscovery (that’s the way I prefer to spell it, by the way).  Here are some of the webcasts to consider checking out today.

According to Exterro, the organizer of the event, there were over 1,500 webinar participants in 12 webinars last year and 7 in-person events.  So, things are hopping and happening.  Webcasts for today include:

Key E-Discovery GDPR Considerations: Advice from Across the Pond: (10am ET, 9am CT) With only six months to coming into force, legal teams are left with serious GDPR questions in relation to US e-discovery activities.  Presented by: Sr. Master Steven Whitaker (Ret.) (Queen’s Bench Division); Ralf Sauer (Head – International Data Protection, EU Commission).

The Case is Done but the Data’s Still Everywhere. What’s a Client To Do?: (11am ET, 10am CT) Join members of the Twin Cities ACEDS chapter, and Mary Mack,  for a panel discussion regarding the appropriate disposition of client data.  For many clients this can be the biggest headache.  What do they need to consider when looking at the security of their data once that data gets to law firms and providers?  What measures are taken to protect data held by those organizations and how do you vet those measures?  And, how does the client ensure appropriate disposition of data by their law firms and vendors at the end of a matter?  Our panel will offer a 360 perspective, including that of the client, the vendor, and the law firm.  Presenters include: Caroline Sweeney, Global Director, E-Discovery & Client Technology, Dorsey & Whitney LLP; Heidi J.K. Fessler, Counsel, Barnes & Thornburg LLP; Frank Krahn, Director, Investigative/Legal Discovery, Office Of Risk Management; George Socha, Co-Founder, EDRM, Managing Director, BDO; Mary Mack, Executive Director, ACEDS.

Authentication of Social Media Evidence: A New Twist on the Old Rules: (12pm ET, 11am CT) Social Media has become a hotbed of potential evidence in many cases nationwide over the past several years. The more prevalent cases involving social media as evidence are in the field of personal injury, family law, criminal law, labor law and Workman’s Compensation. How can the researcher best access this invaluable data? How to get the information into evidence? Must one preserve the social media sites where the data resides? What about private data versus public data? How do the Federal Rules of Evidence apply to social media when introducing it as evidence? Don’t miss this session on one of the most exciting areas of the law and come away with good, practical knowledge on how you can capitalize on this potential evidence for your next case. Presented by: Gayle O’Connor, Marketing Manager, Social Evidence; Tom O’Connor, Consultant, Gulf Coast Legal Technology Center.

Murphy’s eDiscovery Law: How to Keep What Could Go Wrong From Going Wrong: (1pm ET, 12pm CT) As data complexity, discovery costs, and regulatory challenges increase in volume and impact, the pulse rate of publicly highlighted eDiscovery mistakes continues to build. While these mistakes are unfortunate for those who experienced them, they can be beneficial to the rest of us in highlighting mistakes you can avoid in your own cases.  Here’s your chance to learn from their mistakes and keep what could go wrong from going wrong. Presented by: Doug Austin, VP of Products and Professional Services, CloudNine; Tom O’Connor, Special Consultant, CloudNine.

Is it Malpractice Not to Get a FRE 502(d) Order?: (3pm ET, 2pm CT) With so few cases going to trial, lawyers may be unaware of provisions in the Federal Rules of Evidence (FRE) that protect privilege during discovery.  In this edTalk, Judge Peck will discuss why every lawyer should use FRE 502(d) in every case to prevent waiver of privilege.  Presented by: Hon. Andrew Peck, United States Magistrate Judge, Southern District of New York.

Updating Your E-Discovery Toolkit: Experts Discuss: (4pm ET, 3pm CT) There’s a lot of noise out there when it comes to what’s hot or new in e-discovery technology. In this roundtable discussion, four e-discovery technology thought leaders will cut through the noise and identify what new e-discovery technology you should be paying attention to in 2018.  Presented by: Craig Ball (Craig D. Ball PC); Ralph Losey (Jackson Lewis); Maura Grossman (University of Waterloo); George Socha (BDO).

These are just some of the excellent webcasts on tap for today.  Here is a link to all of them.  There are also several in-person events and networking opportunities around the country – here is a link to those.

So, what do you think?  Are you “celebrating” E-Discovery Day?  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.

Want Some Tips on How to Prepare for the Rule 26(f) Meet and Confer? Join us Today!: eDiscovery Best Practices

Not only are the first days after a complaint is filed critical to managing the eDiscovery requirements of the case efficiently and cost-effectively, you need to do some prep even before the case is filed. With a scheduling order required within 120 days of the complaint and a Rule 26(f) “meet and confer” conference required at least 21 days before that, there’s a lot to do and a short time to do it. Where do you begin?  Find out today!

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

Anyway, today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Holy ****, The Case is Filed! What Do I Do Now? (yes, that’s the actual title). In this one-hour webcast, we’ll take a look at the various issues to consider and decisions to be made to help you “get your ducks in a row” and successfully prepare for the Rule 26(f) “meet and confer” conference within the first 100 days after the case is filed. Topics include:

  • What You Should Consider Doing before a Case is Even Filed
  • Scoping the Discovery Effort
  • Identifying Employees Likely to Have Potentially Responsive ESI
  • Mapping Data within the Organization
  • Timing and Execution of the Litigation Hold
  • Handling of Inaccessible Data
  • Guidelines for Interviewing Custodians
  • Managing ESI Collection and Chain of Custody
  • Search Considerations and Preparation
  • Handling and Clawback of Privileged and Confidential Materials
  • Determining Required Format(s) for Production
  • Timing of Discovery Deliverables and Phased Discovery
  • Identifying eDiscovery Liaison and 30(b)(6) Witnesses
  • Available Resources and Checklists

I’ll be presenting the webcast, along with Tom O’Connor, who is now a Special Consultant to CloudNine!  If you follow our blog, you’re undoubtedly familiar with Tom as a leading eDiscovery thought leader (who we’ve interviewed several times over the years) and I’m excited to have Tom as a participant in this webcast!  To register for it, click here.  Even if you can’t make it today, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).

So, what do you think?  When a case is filed, do you have your eDiscovery “ducks in a row”?  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.

Improving your eDiscovery Vocabulary is as Easy as 123: eDiscovery Replay

Sometimes, even blog editors need to take a vacation.  But, instead of “going dark” for the week, we thought we would re-cover some topics from the past, when we had a fraction of the readers we do now.  If it’s new to you, it’s still new, right?  Hope you enjoy!  We’ll return with new posts on Monday, August 7.

Want to be better equipped to speak the “lingo” of eDiscovery and understand what you’re saying?  Here’s a glossary that can help.

As provided via the JDSupra Business Advisor site, Electronic Discovery: Glossary of 123 Commonly Used Terms, provided by Seattle law firm Lane Powell PC, is a glossary of 123 commonly used terms to help you navigate the world of Electronic Discovery.  For those of us who have been in the industry for years, call them Terms of Endearment!

From Active Data to Zip, the glossary defines 123 total terms related to eDiscovery as well as technology in general.  You get discovery terms defined ranging from Bates Number and Chain of Custody to Redaction and Spoliation and technology terms from Cache (pronounced “cash”) and Compression to Unallocated Space and VPN (Virtual Private Network).

You can review the terms from the window on the JD Supra site or download the PDF document for reference purposes.  This list comes in handy for anyone who may need a better understanding of eDiscovery and technology or simply needs a refresher on certain terms.

I did not see definitions for all of the EDRM phases (e.g., no definitions for Identification, Collection, Analysis, Processing or Presentation) and some other terms that might be useful to define (e.g., Searching), so maybe they can eventually issue a supplemented version that has 144 defined terms.  Now, that’s gross!  :o)

Speaking of EDRM, they have their own even more extensive glossary (we covered it here last year) and you can find it (and its sub-glossaries) here.  And, if you want a glossary specific to Technology Assisted Review, here is a terrific one from Maura Grossman and Gordon Cormack.  To become more comfortable with the lingo, be sure not to “gloss” over any of these resources.  :o)

So, what do you think?  Do you speak fluent 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

With Ample Evidence of Bad Faith, Court Sanctions Defendant for Failure to Produce Documents: eDiscovery Case Law

In CrossFit, Inc. v. Nat’l Strength and Conditioning Assn., No. 14cv1191 JLS (KSC) (S.D. Cal. May 26, 2017), California District Judge Janis L. Sammartino granted the plaintiff’s motion for several issue, evidentiary, and monetary sanctions, but denied the plaintiff’s request for terminating sanctions due to the defendant’s bad faith that resulted in the defendant’s failure to produce documents.

Case Background

In this case between competing fitness training organizations where the plaintiff argued that the defendant published a false study regarding the plaintiff’s program and injury rates of its participants, the defendant filed a separate suit in state court against the plaintiff alleging trade libel, defamation, and unfair business practices.  The plaintiff received discovery during the state-court action that appeared to either directly respond to discovery or contradict assertions the defendant deponents had made in this case. The plaintiff then deposed the defendant’s Education Coordinator in the state-court case, during which he admitted that several of the statements in his federal-action declaration, submitted under penalty of perjury, were false.  The plaintiff then “ran several controlled searches in the state-court production” which “yielded hundreds of documents material to the issues in this action and that the defendant should have produced in response to the plaintiff’s discovery requests in this case.

Given that pretrial proceedings were only several weeks away at the time the plaintiff discovered these documents, the plaintiff simultaneously moved to continue the pretrial proceedings and for sanctions against the defendant, including terminating sanctions or, in the alternative, issue, evidentiary, and monetary sanctions.

Judge’s Ruling

Judge Sammartino, indicating that the documents withheld “are too numerous to comprehensively catalog”, provided several examples in her order, including various emails, a 2013 executive summary and “[d]ocuments that affirmatively demonstrate Mr. Clayton’s perjury”.  Judge Sammartino indicated that Rule 37 “authorizes the district court, in its discretion, to impose a wide range of sanctions” and that district courts have inherent power to “impose sanctions including, where appropriate, default or dismissal… However, because dismissal is such a severe remedy it should be imposed only in extreme circumstances, and “only where the violation is ‘due to willfulness, bad faith, or fault of the party.’”

Detailing several of the defendant’s transgressions, Judge Sammartino stated that “the Court agrees with Plaintiff that there is ample evidence of willfulness, bad faith, or fault.”  Judge Sammartino also noted that “nearly every factor weighs in favor of imposing terminating sanctions” and concluded that the Court “is well within its discretion to award terminating sanctions”, but declined to do so, opting for issue, evidentiary, and monetary sanctions instead.  However, before even getting to those, Judge Sammartino awarded these sanctions to address concerns regarding whether the defendant had produced all relevant documents:

“(1) Plaintiff SHALL commission a neutral forensic analysis of the the defendant’s servers and Defendant SHALL pay all costs relating to such forensic analysis;

(2) Defendant SHALL within fourteen days, under penalty of perjury, acquire declarations from all relevant the defendant personnel either (a) assuring or reaffirming that no documents relevant to this litigation have been destroyed or (b) admitting to any destruction;

(3) If at the conclusion of the neutral forensic evaluation it appears that documents have been destroyed, or that the discovery misconduct is substantially greater than the scope of which Plaintiff is currently aware, Plaintiff is GRANTED LEAVE TO RENEW its Motion for Terminating Sanctions and present the newly discovered evidence; and

(4) Defendant SHALL LODGE within fourteen days a copy of the document referenced in Plaintiff’s Sanction Motion Exhibit A so that the Court may conduct an in camera review of the document. Additionally, Plaintiff SHALL PROVIDE a copy of this Order to the neutral forensic analyst so that she may search for other instances of the document referenced in Exhibit A—or its deletion—and any surrounding context.”

The plaintiff supplied a list of thirty potential issue and adverse inference sanctions and Judge Sammartino awarded 17 of them in her order.  In addition, Judge Sammartino, while deducting some costs, awarded $73,550.83 in fees to the plaintiff in connection with its Sanctions Motion and ex parte Continuance.

So, what do you think?  Should the judge have gone ahead and ordered terminating sanctions based on the defendant’s actions to date?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will resume with new posts on Wednesday, July 5.  Happy Independence Day!

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.

This New Pilot Program Can Speed Up Discovery, Especially in Arizona and Illinois: eDiscovery Best Practices

At its meeting in September of 2016, the Judicial Conference of the United States approved a pilot program to test procedures requiring mandatory initial discovery before the commencement of party-directed discovery in civil cases.  Now, that pilot program – the Mandatory Initial Discovery Pilot Program – is already in use in Arizona and Illinois.

The Mandatory Initial Discovery (MIDPP) Pilot Program has been designed to test whether early substantial disclosure of information can reduce litigation costs and shorten the time for case resolution consistent with the goals of Rule 1 of the Federal Rules of Civil Procedure, which requires the court and the parties to employ the rules “to secure the just, speedy, and inexpensive determination” of every case.

As noted in the Above the Law article (Holy Early Discovery, Batman! You’ll Want To Know About This, written by Kelly Twigger), the District of Arizona (effective May 1) and the Northern District of Illinois (effective June 1) “have adopted the MID pilot project for three years. The pilot requires parties to produce all discovery in support of their case (consistent with Rule 26(a)) but ALSO all discovery that is relevant to the opposing parties’ claims and/or defenses. And wait, it gets better — responses have to be filed within 30 days of filing an answer (which everyone now has to do) and documents must be produced 40 days later.”

And, as the description “mandatory” implies, the MIDPP will apply to all civil cases in the volunteer courts, subject to certain specific exemptions.  According to Twigger, those exemptions are “pro se cases, PLSRA matters, MDL matters, and patent cases.”

The Federal Judicial Center site provides several resources regarding the MID Pilot program here, including:

There is also a Checklist page and a Users’ Manual page that provides a general checklist and user’s manual for the MIDPP, as well as specific checklists and user’s manuals for the District of Arizona and the Northern District of Illinois.

So, what do you think?  Will the Mandatory Initial Discovery Pilot Program lead to a speedier and more proportional discovery cycle?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Give yourself a pat on the back if you recognize the movie where the graphic came from – Copyright © Paramount Pictures.  Don’t recognize it?  Surely, you can’t be serious!

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.

The Tenth Annual eDiscovery Training Academy at Georgetown Law is Next Month: eDiscovery Best Practices

I’ve been remiss in not covering this before now, but the 10th Annual eDiscovery Training Academy will be coming up in a couple of weeks at the Georgetown University Law Center.  If you want a really in-depth training course with highly respected and knowledgeable instructors, this is as good a course as there is.

This year’s academy begins on Sunday, June 4, goes through Friday, June 9 and is designed to “fully immerse you in the subject of eDiscovery”. It features a highly personalized and interactive instructional approach designed to foster an intense connection among students, and one “where you will be essentially an apprentice: observing closely, questioning thoroughly, and intimately understanding the approach and knowledge of experts in the craft.”  Those experts are a renowned faculty including Craig D. Ball, Maura R. Grossman, Thomas O’Connor, and Mark S. Sidoti. Retired Magistrate Judge John M. Facciola will also provide additional guidance from a judicial and pragmatic point of view.

The program includes hands-on practice with tools and data at your computer, organized into exercises designed to help you become more comfortable and adept with both the fundamentals and intricacies of ESI.  And, you will learn about and discuss legal issues and concepts, including technology-assisted review, quality assurance, sampling, “legal hold” analysis, the use of Federal Rule of Evidence 502 to minimize the risks of inadvertent disclosure, attorney-client privilege, work product and limitations on waiver, and analyses of cost allocation, proportionality, and “not reasonably accessible” issues.

If you’re in big need of CLE credit hours, you get 26 credit hours (31.2, if your state uses a 50 minute credit hour), which includes 1.2 hours of ethics credit.  Georgetown Law is an accredited CLE provider in most MCLE states.

Click here for pricing information and to register.  There are discounts for Georgetown Law Alumni and Government employees, so, if you’re in one of those groups, you’re eligible for considerable savings.  If you’re interested in attending, time is of the essence – the Academy is limited to 60 participants, so register as soon as possible to reserve your place.

So, what do you think?  Have you been looking for comprehensive eDiscovery training for you or your staff? 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.