Evidence

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

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 on November 16, part two was published last Monday and part three was published last Tuesday.  Here’s the fourth part.

What are Some Good Resources to Help Lawyers Improve their Technology Expertise?

Craig Ball once made a great point in responding to a post of mine about educating lawyers when he said “We not only need to persuade lawyers to take the plunge, we need to insure there’s a pool for them to jump into. By that I mean, there just isn’t a clear path to accessible resources for the lawyer who wants to get a handle on the technology. Do they go to a community night course on computers? Pursue online education? Wait for the next Georgetown Academy?  I don’t think I’ve even seen a really good reading list on the topic (and much as I’d like for it to be, consuming the offerings on my web site isn’t enough).

Browning Marean of DLA Piper replied that since there is no general technology educational resource for attorneys and it is unlikely that there ever will be, first because the field is constantly changing and no clear standards have yet to emerge and second because of the reluctance of traditional legal educational institutions to undertake any form of “vocational” training as we discussed above, he felt the only clear option is a constant monitoring of ED websites. Among his favorites were the K&L Gates case law site, Ralph Losey’s e-Discovery Team® site and the EDRM web site.  To that list I’d add eDiscovery Daily, the Association of Certified eDiscovery Specialists (ACEDS) blog and of course Craig Ball’s Ball in your court blog.

Beyond that, I’d also suggest the following books which are worth consulting as well:

A Process of Illumination: The Practical Guide To Electronic Discovery, Mary Mack (available on Amazon here)

The Discovery Revolution, George L. Paul and Bruce H. Nearon, ABA publication (available on Amazon here)

e-Discovery for Everyone, Ralph Losey (available on Amazon here)

Electronic Discovery and Evidence, Fourth Edition, Michael Arkfeld (available for purchase at Law Partner Publishing/LexisNexis here)

Managing E-Discovery and ESI: From Pre-Litigation to Trial 1st Edition, Michael D. Berman, Courtney Ingraffia Barton, Paul W. Grimm, ABA Press (available on Amazon here)

Project Management in Electronic Discovery: An Introduction to Core Principles of Legal Project Management and Leadership In eDiscovery, Michael Quartararo (available on Amazon here)

Electronic Discovery and Digital Evidence in a Nutshell, Shira Scheindlin & The Sedona Conference® (available on Amazon here)

Electronic Discovery for Small Cases: Managing Digital Evidence and ESI, Bruce Olson & Tom O’Connor, ABA publication (available on Amazon here)

We’ll publish the final part, Part 5 – What can we do to Help Lawyers become Technologically Proficient? – 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.

IoT Devices Lead to Suspect’s Arrest for Murder: eDiscovery Trends

Honestly, I don’t know why anyone would consider committing a violent crime these days.  There’s the use of ever-improving DNA technology that leads to the arrest of scores of alleged offenders each year – even if you’re not in the Combined DNA Index System (CODIS) database, you can still be identified as a suspect through your relatives via genealogy databases, as we’ve recently seen in the case of the Golden State Killer.  And, if your DNA doesn’t get you, an Internet of Things (IoT) device may, as evidenced in this case.

As reported by CNET (Murder victim’s Fitbit data leads to alleged killer’s arrest, written by Steven Musil), Karen Navarra’s Fitbit recorded a rapid rise in her heart rate before a sudden drop-off to nothing, offering San Jose police a clearer time frame of her death on Sept. 8, the San Francisco Chronicle reported Friday. 90-year-old Tony Aiello was arrested last month in connection with his 67-year-old stepdaughter’s death.

Investigators noticed Navarra was wearing a Fitbit and they turned to the company for any possible clues the device could provide. Police learned that Navarra’s heart rate spiked at 3:20 p.m. and stopped registering a heartbeat eight minutes later, the Chronicle reported.

Although Aiello has reportedly denied killing Navarra, nearby cameras captured images of Aiello’s car parked at Navarra’s home on Sept. 8 at the same time her Fitbit showed her heartbeat rapidly falling and stopping, the newspaper reported.

Of course, those “nearby cameras” could themselves be IoT devices (Ring doorbell, anybody?).  And, we covered a different case last year regarding the Fitbit of a murder victim that helped disprove her husband’s story regarding an “intruder” that he said shot her to death – that evidence helped lead to his arrest for her murder.  In another case covered on 48 Hours recently, a Wisconsin man’s Fitbit exonerated him of his girlfriend’s 2016 murder when it showed his movements during the time police say her body was dumped in a field.  Needless to say, IoT devices are becoming more and more prominent in criminal investigations and discovery.

Changing gears here, Rob Robinson, through his terrific Complex Discovery site, is certainly the king of compilations and analysis regarding eDiscovery trends and his latest analysis involves “an aggregation of results from fourteen surveys from leading ALM magazines ranging from Corporate Counsel to Texas Lawyer administered to online audiences and published as special supplements between November 2017 and October 2018.”  Rob took the sixteen eDiscovery-centric survey categories represented in the fourteen surveys and tracked all of the providers who received at least one vote as a top three provider (101 providers in all).

Twenty-five of those providers was voted a top three provider at least six times across the fourteen surveys and Rob has ranked them by the number of times they received a top three vote.  So, which provider was voted a top three provider the most times by participants in the fourteen ALM surveys?  Click here to find out.  :o)

So, what do you think?  Have you had a case that involved evidence from an IoT device?  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.

Despite Carpenter, This Defendant’s Cell Site Location Information is Ruled Admissible: eDiscovery Case Law

In United States v. Pleasant, Criminal Action No. 17-62 (E.D. Pa. Sept. 5, 2018), Pennsylvania District Judge Gerald Austin McHugh ruled that the defendant’s motion to suppress historical cell-site location information associated with his cellular telephone lacked merit, despite the Supreme Court’s recent decision in Carpenter v. United States, because the agents proceeded “by means of a court order issued under a federal statute that had repeatedly withstood Fourth Amendment scrutiny…in good faith under then existing law”.

Case Background

In this prosecution for multiple bank robberies, the defendant moved to suppress historical cell-site location information (CSLI) associated with his cellular telephone, citing the recent Supreme Court ruling in Carpenter v. United States. The Government obtained the CSLI, without a warrant, through an order issued pursuant to 18 U.S.C. § 2703(c), a provision of the Stored Communications Act, based on a showing that the records were “relevant and material” to an ongoing criminal investigation.

Judge’s Ruling

Judge McHugh observed that “Defendant correctly argues that under the Supreme Court’s recent decision in Carpenter v. United States, ___ U.S. ___, 138 S. Ct. 2206 (2018), the CSLI was obtained by the Government in violation of the Fourth Amendment. Defendant is also correct that Carpenter retroactively applies to this case. That does not end the inquiry, because the Government is equally correct that there is a good faith exception to application of the exclusionary rule. Having considered the parties’ submissions, I am persuaded that the government agents who accessed this information did so in good faith reliance on a federal statute and circuit court precedent that was controlling at the time.”

While noting that “In Carpenter, the Supreme Court addressed the constitutionality of this provision under the Fourth Amendment and concluded that, in accessing CSLI from wireless carriers, the Government had ‘invaded’ the defendant’s ‘reasonable expectation of privacy in the whole of his physical movements’”, Judge McHugh ruled:

“Despite Carpenter, Defendant’s Motion lacks merit. Under the exclusionary rule, as a general matter, the government may not introduce evidence in a criminal trial that was obtained in violation of the Fourth Amendment. The exclusionary rule, however, is rooted in policy considerations: it serves to enforce the Fourth Amendment by discouraging police misconduct. As the Supreme Court has recognized, the Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,’ but it has no provision ‘expressly precluding the use of evidence obtained in violation of its commands.’…Consequently, the exclusionary rule ‘is not an individual right and applies only where it `result[s] in appreciable deterrence.’’…Stated differently, it is a judicially imposed sanction applied when necessary to enforce the Constitution.”

As a result, Judge McHugh ruled: “Because application of the exclusionary rule here would not serve the purpose of deterring unlawful conduct by law enforcement, Defendant’s Motion to Suppress will be denied.”

So, what do you think?  Was the court right to have ruled the CSLI admissible despite the recent Carpenter ruling?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Also, if you’re going to be in Houston on Thursday, September 27, just a reminder that I will be speaking at the second annual Legal Technology Showcase & Conference, hosted by the Women in eDiscovery (WiE), Houston Chapter, South Texas College of Law and the Association of Certified E-Discovery Specialists (ACEDS).  I’ll be part of the panel discussion AI and TAR for Legal: Use Cases for Discovery and Beyond at 3:00pm and CloudNine is also a Premier Platinum Sponsor for the event (as well as an Exhibitor, so you can come learn about us too).  Click here to register!

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.

Standardizing the Non-Standard Digital Forensics Protocol, Sort Of: eDiscovery Best Practices

Leave it to Craig Ball to come up with a proposed form examination protocol for performing forensic examinations.  And, leave it to Craig to teach you what you need to know to use and adapt such a protocol.

In his latest blog post on his Ball in Your Court blog (Drafting Digital Forensic Examination Protocols, available here on his blog and here on his site in PDF form), Craig discusses the ins and outs of putting together a forensic examination protocol, equating the drafting of such a protocol to “writing out the questions in advance” when taking the deposition of a computer or smart phone.  In an unusually long blog post for Craig’s blog (dare I say a “Losey-ian” length blog post?), Craig thoroughly covers the considerations regarding drafting a sensible forensic examination protocol (which, as Craig notes, “demands a working knowledge of the tools and techniques of forensic analysis so counsel doesn’t try to misapply e-discovery methodologies to forensic tasks”).

After introducing the topic, Craig properly and bluntly sets the expectation for many of the people he expects to read his post, as follows (in bold, no less):

“If you’ve come here for a form examination protocol, you’ll find it; but the ‘price’ is learning a little about why forensic examination protocols require certain language and above all, why you must carefully adapt any protocol to the needs of your case.”

In other words, you’re missing the boat if you just blindly try to apply his proposed protocol without understanding important concepts of forensic examinations.  Would you skip to the end of a movie to see how it turns out?  (I’m not sure that’s the best analogy, but it’s the best I can think of at the end of a long day)…  Regardless, you should take the opportunity to learn the concept so that you can apply it properly.

While each forensic examination protocol is unique, Craig identifies some common elements that examination protocols should share, among other things:

  • Identify the examiner (or the selection process) and the devices and media under scrutiny;
  • set the scope of the exam, temporally and topically;
  • Insure integrity of the evidence;
  • Detail the procedures and analyses to be completed;
  • Set deadlines and reporting responsibilities;
  • Require cooperation; and,
  • Assign payment duties.

Craig then proceeds to address various aspects of those considerations, covering aspects of forensic examination that you might not otherwise think of, such as: Who pays for it?  Should you direct the examiner to “undelete everything” or simply try to find potentially relevant files and files types?

Toward the end of the post, Craig then provides an “Exemplar Acquisition Protocol”, adapted from the court’s order in Xpel Techs. Corp. v. Am. Filter Film Distribs., 2008 WL 744837 (W.D. Tex. Mar. 17, 2008).  Of course, even the exemplar protocol isn’t perfect – it doesn’t address privilege and confidentiality concerns or forms of production, for example.  The key is to take what you learn during the blog post and customize a protocol that works for your case.

As always, Craig’s post is a great read – in this case, it equates to a 15-page PDF file with a preceding cover page – and is well worth checking out.  As a provider that offers forensic examinations for our clients, we would love to consistently have such a well-defined protocol!

So, what do you think?  How do you define protocols for forensic examination in your cases?  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.

Court Rules Non-Party Subpoenaed ESI Not Subject to 100-Mile Boundary: eDiscovery Case Week

eDiscovery Case Week continues!  We had a great webcast yesterday where Tom O’Connor and I discussed key eDiscovery case law for the first half of 2018 – 22 cases in all!  Now, on to covering cases for the second half of 2018!  :o)

In Curtis v. Progressive N. Ins. Co., No. CIV-17-1076-C (W.D. Okla. June 13, 2018), Oklahoma District Judge Robin J. Cauthron, noting that the non-party “subpoena at issue does not require the travel or attendance of any witnesses and Plaintiff is requesting the production of electronic documents”, found that “there is no violation of the 100-mile limitation for electronic documents pertaining to Rule 54” and granted the plaintiff’s Motion to Compel Compliance with Subpoena directed to the non-party.

Case Background

In this case where the plaintiff claimed breach of contract, bad faith, unjust enrichment, and fraud against the defendant insurance company over the valuation of the plaintiff’s vehicles after two automobile collisions, the plaintiff served non-party Mitchell International, Inc. with a subpoena duces tecum in March 2018.  The plaintiff requested documents from Mitchell pertaining to “the correspondence, purchase, and analysis of the [computer valuation system]” Mitchell utilized to create valuations of total loss vehicles for the defendant and served Mitchell through its Oklahoma registered agent.  Within two weeks, Mitchell served written objections to Plaintiff’s subpoena.  Subsequent discussion failed to reach a resolution and the plaintiff filed a Motion to Compel Compliance with Subpoena.

The plaintiff argued that her subpoena was valid and enforceable because “a subpoena that commands a person to travel beyond the 100-mile boundary must be quashed however, a Court retains discretion to command compliance with a subpoena for documents which requires production beyond the 100-mile limitation.”  The plaintiff also noted that “[t]he contractual nature of the relationship between Progressive and Mitchell, as well [as] the cost-savings incentives marketed to Progressive by Mitchell are relevant to the claims in this lawsuit . . . concerning the method and manner in which the system operates in creating values for Progressive’s Oklahoma insureds is the fundamental basis of Plaintiff’s claims.”  Mitchell argued that the Court lacked jurisdiction to hear the plaintiff’s motion because Mitchell maintains its headquarters and principal place of business in San Diego and the subpoena demands compliance in Shawnee, Oklahoma.

Judge’s Ruling

Noting that “Federal district courts enjoy broad discretion over discovery measures”, Judge Cauthron, in granting the plaintiff’s motion, stated:

“Here, Plaintiff states—and Mitchell does not dispute—that the information requested can be produced electronically. Mitchell has an Oklahoma registered agent and Progressive Northern Insurance Company continues to use the valuation system licensed and provided by Mitchell in Oklahoma to conduct business. As a result, Mitchell regularly transacts business in Oklahoma. The subpoena at issue does not require the travel or attendance of any witnesses and Plaintiff is requesting the production of electronic documents. This Court finds that there is no violation of the 100-mile limitation for electronic documents pertaining to Rule 54.”

Two weeks later, Judge Cauthron also denied the defendant’s motion to quash the subpoena.

So, what do you think?  Should there even be a 100-mile limitation for discovery?  Please let us know if 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.

Former Employee Sanctioned for Lying Under Oath, Destruction of ESI: eDiscovery Case Law

In Heggen v. Maxim Healthcare Servs., Inc., No. 1:16-cv-00440-TLS-SLC (N.D. Ind. April 27, 2018), Indiana Magistrate Judge Susan Collins ruled that the plaintiff’s destruction of requested cellphone recordings, as well as lying under oath, were sanctionable under FRCP Rule 37.

Case Background

The plaintiff filed the case against her former employer – a provider of temporary medical staffing, home health care, and wellness services – with claims of sexual harassment and retaliation. The plaintiff stated under oath that she chose to leave these employers “voluntarily” because the two clients with whom she worked were going into a nursing home.

However, the defendant pointed out that records show that the plaintiff was terminated after she refused to discuss a complaint that the plaintiff stole $300 from a client under her care, as well as mismanagement of the client’s financial assets. A discovery request to the Indiana Department of Workforce Development revealed that the plaintiff had worked for Interim Health Care immediately prior to joining the defendant, even though she responded to the first request for production with a different former employer, and then stated a second employer during her deposition. Based on the records from Interim, the defendant claimed that the circumstances of the plaintiff’s departure from Interim were “strikingly similar” to the plaintiff’s time at the defendant, including that a patient’s medications went missing – the plaintiff then tested positive for the missing medications on a drug test, and the plaintiff failed to return to work after the complaint.

The clearest contention that the defendant brought is that the plaintiff destroyed key evidence in at least three different ways and this, along with the other actions by the plaintiff, the defendant contended was grounds for a dismissal sanction. The plaintiff testified at her deposition that she made about seven recordings of unidentified defendant employees and said these recordings supported her claims against the defendant, she also testified that the Equal Employment Opportunity Commission (“EEOC”) had the recordings, because she deleted the recordings from her cell phone since she “didn’t want them to have [her] phone lost and have them be out there.” She claimed she had emailed the recordings to the EEOC, but couldn’t find any copy of the emails transmitting the recordings. After sending the emails, she performed a factory reset of her phone (an older Apple model) that basically had “broke[n] down,” and that she was trying to get working again. The reset deleted all of the data stored on it, including the recordings.

She felt that emailing the recordings to EEOC was a form of preservation and “thought it was okay to get rid of them[.]” Copies of three of the recordings were found, and the plaintiff submitted transcripts of these recordings with her response brief, and she also provided a copy of the recordings and transcripts to the defendant. However, there was no explanation for the other missing recordings.

The defendant had sought the recordings from the plaintiff for months through traditional discovery and because it did not have the recordings when it deposed the plaintiff, it felt that resulted in prejudice against them. They also argued that there was a significant difference between original recordings and copies of recordings. What the plaintiff submitted appeared to be at least two different layers of recorded conversations: “an ongoing face-to-face interaction between individuals who are supposedly simultaneously listening to and participating in a different interaction by telephone, all recorded on top of each other.”  Also, because they were copies, there was no way to delve into the original metadata of the recordings. Further, while the original recordings were made on an iPhone, the files produced were in 3GP format, a format generally used by Android phones, raising even more questions.

Judge’s Ruling

Judge Collins ruled that the defendant’s failure under oath to disclose Interim as a prior employer and for her destruction of the original cell phone recordings was sanctionable. But noted that a sanction for discovery abuse must be “a proportionate response to the circumstances.”

Judge Collins stated, “The draconian sanction of dismissal is not presently warranted here. Rather, the present circumstances warrant the imposition of lesser sanctions in the form of a monetary penalty—that is, ordering Heggen to pay the reasonable expenses, including attorney’s fees, that Maxim incurred in filing the motion to compel [See FRCP Rule 37]. The Court has no reason, at least at this juncture, to conclude that the imposition of this monetary penalty would be fruitless. The Court will also consider a spoliation instruction upon a pretrial motion by counsel should this case go to trial. The motion for sanctions is otherwise denied. Heggen is duly warned that any additional discovery transgressions may result in further sanctions against her, up to and including dismissal of this case.”

So, what do you think?  Was the ruling correct or was a sanction of dismissal warranted in this case?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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.

Defendant Sanctioned for “Deliberately” Altering a Skype Communication: eDiscovery Case Law

In GoPro, Inc. v. 360Heros, Inc., No. 16-cv-01944-SI (N.D. Cal. March 30, 2018), California District Judge Susan Illston denied the plaintiff’s motion for summary judgment and denied the defendant’s motion in limine to exclude the testimony of the plaintiff’s forensic analysis expert, but granted (in part) the plaintiff’s motion for partial terminating sanctions against the defendant for forging evidence in two Skype conversations, opting for an adverse inference instruction sanction and reimbursement of expenses related to forensic analysis and testimony instead of the terminating sanctions sought.

But first, this week’s eDiscovery Tech Tip of the Week is about Saving Searches.  Documentation is a key component of a sound discovery process. The ability to automatically save the searches that you have performed not only saves time in retrieving those documents later, but it also helps document the process for performing searches should you have to defend your approach in court.  Saving searches is just one component of an overall program for documenting your approach in eDiscovery.

To see an example of how Saving Searches is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

Case Background

In this case regarding federal and state trademark infringement and unfair competition, the defendant (in November 2016) produced to the plaintiff two emails (in a single PDF format) containing the transcript of two 2014 Skype conversations between representatives of the plaintiff and defendant where . In the Skype conversations as produced by the defendant, the plaintiff referenced the term “abyss” twice (the parties had a dispute over plaintiff’s ABYSS mark).

At his deposition, the defendant representative testified under oath that the PDF document was a true and correct copy of the Skype conversation, stating that he had copied and pasted the Skype conversation into an email, and then sent it to himself. He claimed the only alteration he made to the document was to highlight the two lines of conversation containing the word “abyss”. In response to the plaintiff’s request for the Skype files in their native form, the defendant representative claimed the original Skype conversation was no longer available to him.

As part of its investigation into the defendant’s claims, the plaintiff accessed equipment containing its end of the Skype conversation and its Skype records did not contain the two highlighted lines referencing “abyss.” To confirm their findings, GoPro retained a forensic expert (Derek Duarte of Blackstone Discovery) to conduct a forensic analysis, which determined that it’s representative’s imaged Skype database did not contain the two highlighted lines referencing “abyss”, leading to the motion for partial terminating sanctions.  In response, the defendant claimed that the expert’s results were unverifiable and unreliable because he could not verify that the data on the hard drive contained the same data as it did in 2014.

Judge’s Ruling

In ruling on the motion, Judge Illston ruled, as follows:

“The Court is not persuaded by defendant’s explanation of the suspect document, and concludes on the present record that defendant deliberately altered it in an effort to strengthen its legal position with respect the ABYSS mark. GoPro argues it has been prejudiced because as part of its investigation into 360Heros’ prior use defense, GoPro incurred various expenditures, including having to locate and hire an expert to forensically investigate the Skype chat. Sanctions less drastic than terminating sanctions are available to remedy any potential prejudice to GoPro. Accordingly, the Court finds that sanctions are warranted, and that the appropriate sanctions in this case are twofold: (1) an adverse inference instruction at trial, related to Mr. Kintner’s conduct; and (2) reimbursement to GoPro of the costs incurred in retaining Mr. Duarte, including expenses paid to Mr. Duarte and the cost of attorney time required to locate and retain Mr. Duarte. Plaintiff shall submit its statement of costs so incurred in a sworn document to be filed no later than April 13, 2018.”

Judge Illston also denied the plaintiff’s motion for summary judgment, finding that “defendant raises material issues of fact as to numerous of the factors”.  She also denied the defendant’s motion in limine to exclude the testimony of the plaintiff’s forensic analysis expert, but Judge Illston found the expert to be “qualified to testify on these matters” and that his proposed testimony was “directly relevant to the authenticity of the disputed Skype conversation.”

So, what do you think?  Did the judge go far enough with her sanctions?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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.

Law Enforcement Has Found a New Way to Put a Finger on iPhone Evidence: eDiscovery Trends

A dead finger, that is.  Believe it or not, cops are now opening iPhones with dead people’s fingerprints.

A couple of days ago Sharon Nelson (on her excellent Ride the Lightning blog) covered a Forbes article that discussed a suspect who mowed down a group of people in his car, went on a stabbing spree with a butcher’s knife and was shot dead by a police officer on the grounds of Ohio State University.  To try to access the phone to learn more about the assailant’s motives, an FBI agent applied the bloodied body’s index finger to the iPhone found on the deceased suspect.

In that case, it didn’t work as the iPhone had gone to sleep and when reopened required a passcode.  But, this technique is working in many other cases.  Separate sources close to local and federal police investigations in New York and Ohio, who asked to remain anonymous as they weren’t authorized to speak on record, said it was now relatively common for fingerprints of the deceased to be depressed on the scanner of Apple iPhones, devices which have been wrapped up in increasingly powerful encryption over recent years. For instance, the technique has been used in overdose cases, said one source. In such instances, the victim’s phone could contain information leading directly to the dealer.

Not surprisingly, there are concerns about whether a warrant should be required. Greg Nojeim, senior counsel and director of the Freedom, Security and Technology Project at the Center for Democracy & Technology, said it’s possible in many cases there would be a valid concern about law enforcement using fingerprints on smartphones without any probable cause. “That’s why the idea of requiring a warrant isn’t out of bounds,” Nojeim added.

Think having an iPhone X that replaces the fingerprint security with facial recognition technology will keep law enforcement at bay?  Think again.  It could be an easier way into iPhones than Touch ID. Marc Rogers, researcher and head of information security at Cloudflare, told Forbes he’d been looking at Face ID in recent months and had discovered it didn’t appear to require the face of a living person to work – apparently the technology can be deceived simply using photos of open eyes or even only one open eye on the suspect.  “In that sense it’s easier to unlock than Touch ID – all you need to do is show your target his or her phone and the moment they glance it unlocks,” he stated.

Or open the eyes of the dead suspect.  Dead men tell no tales?  Maybe they do after all.

So, what do you think?  Should a warrant be required to access phones with fingerprint or facial recognition technology?  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.

Pizza Hut Pie Tops – The Internet of Things Keeps Getting Stranger: eDiscovery Trends

Editor’s Note: Jim Gill’s writing about eDiscovery and Data Management has been twice recognized with JD Supra Reader’s Choice Awards and he holds an MFA in Creative Writing from Southern Illinois University, Carbondale.  Before working in eDiscovery, Jim taught college writing at a number of institutions and his creative work has been published in numerous national literary journals, as well as being nominated for a Pushcart Prize.

Jim’s post below highlights the proliferation of “internet of things” (IoT) devices in our world (with a unique example) and how that can impact eDiscovery activities.  Great timing, as I will be talking about collecting data from IoT devices at the University of Florida E-Discovery Conference, which will be held a week from today – Thursday, March 29.  As always, the conference will be conducted in Gainesville, FL on the University of Florida Levin College of Law campus (as well as being livestreamed), with CLE-accredited sessions all day from 8am to 5:30pm ET.  I (Doug) am on a panel discussion at 9am ET in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig Ball, Kelly Twigger, with Judge Amanda Arnold Sansone.  Click here to register for the conference – it’s only $199 for the entire day in person and only $99 for livestream attendance.  Don’t miss it!

A couple of weeks ago, Pizza Hut announced the release of a pair of sneakers dubbed Pie Tops II – yes, real wearable shoes – which will link with your phone via Bluetooth to connect with the Pizza Hut app, allowing you to order a pizza with the single push of a button on the shoe’s tongue. An additional feature connects with TV receivers like Xfinity, Spectrum, and DirecTV, pausing whatever you’re watching when the pizza arrives at the door.

Yes, this is obviously a marketing gimmick, though it could be yet another sign we’re on the fast track to the world portrayed in the film Idiocracy. But when I saw this, I immediately imagined the possible eDiscovery implications. The IoT has continues to play more of a role in the law, particularly in criminal cases, such as the one where a man in Connecticut was arrested for the murder of his wife because of evidence attained from her Fitbit (covered by the eDiscovery Daily blog here). Now more than ever, criminal and civil courts are dealing with digital evidence that not so long ago didn’t even exist.

Many people in eDiscovery still think of ESI as email or documents. And for the most part, they’re right. But anyone working in the legal tech / data management industries should know by now that what isn’t a concern today, will be in a short matter of time. For individuals, short-sightedness regarding technology may not pose a huge concern on a day-to-day basis. For most of us, the biggest data risk we face is dropping our phones in the toilet. But for corporations, government entities, and other large organizations, getting caught off guard when it comes to the ability to preserve and collect data could bring significant costs, both financial and legal.

This is a where a robust information governance program can protect you from potential snags down the road. Not every new technology will apply to your organization but knowing what your current data landscape looks like gives you a head start on being prepared should something new arise. Housecleaning is also an important part of this process. Once you have a handle on everything, you can begin making decisions on what needs to be kept and what can be defensibly deleted. With data storage becoming more readily available, along with in-place preservation platforms, it’s very easy to keep everything and worry about it later. But more data is coming down the pipe in droves, and sooner or later it’s going to get unwieldy.

It’s also important to think about policies and contingencies regarding new technologies as they come into your organization. More and more people are using their own devices, particularly on the mobile front, which means a huge number of applications are creating ESI related to professional activity. If you don’t have a plan in place for dealing with these as far as preservation and collection, things could get stressful in a hurry should litigation arise. The flipside of that scenario is that too strict a lockdown on the types of devices and platforms that can be used could cut into productivity and dampen creativity.

The main thing to focus on is open and forward-thinking communication should happen continually between all stakeholders: legal, IT, business units, and 3rd party vendors. This way, if something unexpected does come up, everyone is on board and knows how to handle it.

It’s pretty unlikely that data from the Pie Tops II will come into play in your next big case (though I can imagine a modern-day Perry Mason-type drama where someone’s alibi hinges on the time and place they ordered a pizza from their shoes). But, their very existence should get you thinking about the data types that your organization is using, or may soon start using, and their role in litigation.

So, what do you think?  Have you seen a rise in new data affecting your organization?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Pizza Hut, LLC

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.

NY Appellate Court Reverses Ruling on Discovery of “Private” Facebook Posts: eDiscovery Case Law

In Forman v. Henkin, No. 1. (N.Y. Feb. 13, 2018), the Court of Appeals of New York reinstated a trial judge’s ruling requiring the plaintiff who was disabled in a horse riding accident to turn over “private” photos to the defendant taken before and after her injuries.

But first, this week’s eDiscovery Tech Tip of the Week is about Fuzzy Searching.  When performing keyword searching, you may know what terms you’re searching for, but it’s easy to miss important search hits if the term is misspelled or has OCR inaccuracies.  So, if you’re looking for the term “petroleum”, you can find variations such as “peroleum”, “petoleum” or even “petroleum” – misspellings or OCR errors that could be relevant.  Fuzzy searching is a way to catch many of those variations, expanding the potential recall of your search.  The ability that fuzzy searching provides to find words that are one or two characters off from the correct spelling of the term could enable you to locate important ESI to your case that would otherwise be missed, simply because the term is not spelled correctly.

To see an example of how Fuzzy Searching is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

Case Background

In this case regarding allegations that the plaintiff was injured when she fell from a horse owned by defendant and maintained that, since the accident, she had become reclusive as a result of her injuries and also had difficulty using a computer and composing coherent messages.  In particular, she contended that a simple email could take hours to write because she had to go over written material several times to make sure it made sense.  The defendant sought an unlimited authorization to obtain plaintiff’s entire “private” Facebook account, contending the photographs and written postings would be material and necessary to his defense of the action under CPLR 3101(a).  When the plaintiff failed to provide the authorization, the defendant moved to compel, asserting that the Facebook material sought was relevant to the scope of plaintiff’s injuries and her credibility.  The plaintiff opposed the motion arguing that the defendant failed to establish a basis for access to the “private” portion of her Facebook account because, among other things, the “public” portion contained only a single photograph that did not contradict the plaintiff’s claims or deposition testimony.

In February 2014, the trial court ordered the plaintiff to give the defendant pre-accident photos she intended to use at trial, post-accident photos not depicting nudity or romantic encounters, and access to post-accident records of her messages.  However, in December 2015, the appeals court limited the disclosure to photos intended for trial, saying the defendant could not go on a “fishing expedition” for evidence.  Two Justices dissented, concluding the defendant was entitled to broader access to the plaintiff’s Facebook account and calling for reconsideration of that court’s recent precedent addressing disclosure of social media information as unduly restrictive and inconsistent with New York’s policy of open discovery. The Appellate Division granted the defendant leave to appeal to this Court, asking whether its order was properly made.

Appellate Court’s Ruling

In considering that appeal, the Court observed that “a threshold rule requiring [the party seeking disclosure] to ‘identify relevant information in [the] Facebook account’ effectively permits disclosure only in limited circumstances, allowing the account holder to unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account. Under such an approach, disclosure turns on the extent to which some of the information sought is already accessible – and not, as it should, on whether it is ‘material and necessary to the prosecution or defense of an action’”.  So, while the Court stated that “we reject the notion that the account holder’s so-called ‘privacy’ settings govern the scope of disclosure of social media materials”, it also stated that “we agree with other courts that have rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable”.

Nonetheless, the Court acknowledged that “even private materials may be subject to discovery if they are relevant. For example, medical records enjoy protection in many contexts under the physician-patient privilege…But when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records – including the physician-patient privilege – are waived”.  With that in mind, the Court stated:

“Applying these principles here, the Appellate Division erred in modifying Supreme Court’s order to further restrict disclosure of plaintiff’s Facebook account, limiting discovery to only those photographs plaintiff intended to introduce at trial. With respect to the items Supreme Court ordered to be disclosed (the only portion of the discovery request we may consider), defendant more than met his threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence.”  So, the Court reversed the Appellate Division order and reinstated the lower court order.

So, what do you think?  Should “private” Facebook posts be discoverable?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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.