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Thinking Like a Millennial: How Millennials are Changing Discovery, 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, Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, which we covered as part of a webcast on June 26.  Now, Tom has written another terrific overview regarding the impact of millennials on eDiscovery titled Thinking Like a Millennial: How Millennials are Changing Discovery 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 Tuesday, here is the second part.

Understanding Millennials and How They Differ from Previous Generations

Well first, let’s ask, what exactly is a millennial? Are they really, as often stated, misunderstood job jumpers who have taken control of both the workplace and economy?

What exactly is the generational breakdown? Generational analysis is difficult and often shifting and it takes time for popular and expert consensus to develop precise breakdowns, but the Pew Research Center assesses such demographics and has come up with the following chart:

  • The Silent Generation: Born 1928-1945 (74-91 years old)
  • Baby Boomers: Born 1946-1964 (55-73 years old)
  • Generation X: Born 1965-1980 (39-54 years old)
  • Millennials: Born 1981-1996 (23-38 years old)
  • Generation Z (Post Millennials): born 1997 or later (up to 22 years old)

Millennials are expected to overtake Boomers in population in 2019 as their numbers swell to 73 million and Boomers decline to 72 million while Gen X is projected to pass the Boomers in population by 2028.

The Millennial generation growth is not just from a growing birth rate. Census figures show that young immigrants also expand its ranks. Meanwhile, boomers are aging and their numbers shrinking in size as the number of deaths among them exceeds the number of older immigrants arriving in the country.

What does this mean in terms of technical usage trends? The Millennial segment may not be “digital natives” to the degree of the Gen Z population but they have grown up during the digital revolution.  They’re tech savvy and saw firsthand the explosion in the use of mobile phones, social media and Internet-based information at your fingertips.

Compare that to my generation. As a bona fide boomer, I was born in 1950 in upstate Vermont. I grew up listening to a radio for my entertainment and getting my news from a paper. When TV entered my life, it came on at 4PM, went off at 11PM and consisted of two Lo VHF channels. One of which was from Montreal. At least I didn’t need to speak French to watch hockey.

Then came transistor radios. Portable data! I listened to the first Mercury launch, to the Beatles sing I Want to Hold Your Hand. To Cassius Clay beat Sonny Liston, Bill Mazeroski homer to win the World Series in the 9th. In my own room.

Next up was a car. AM radio. Better than a transistor. But I was a teenage and on AM radio there was a nothin’ goin’ down at all. Then one morning I found a New York station and I couldn’t believe what I heard at all. I started shakin’ to that fine, fine music and my life was saved by rock ‘n’ roll. FM baby. And the next thing I know I was rolling down the window and letting the wind blow back my hair on the New Jersey Turnpike in the wee, wee hours.

8 tracks, cassette players, the Internet, IPods: all of it one big wow. But technology does not present a “wow” factor for millennials and Gen Z. Rather new technology products and apps are just another channel in the cable network world of 500 channels that is their lives. A new channel appears, they try it. If they like it, they listen more. If not, switch the channel, flip the switch, try something new.

We’ll publish Part 3 – Drivers for Millennials’ Thinking Today – next Monday.

So, what do you think?  Have the habits of millennials impacted eDiscovery for your organization?  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.

Thinking Like a Millennial: How Millennials are Changing Discovery

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, Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, which we covered as part of a webcast on June 26.  Now, Tom has written another terrific overview regarding the impact of millennials on eDiscovery titled Thinking Like a Millennial: How Millennials are Changing Discovery 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

I was asked to tackle this topic after a question in a recent webinar. It seems to imply that millennials are or will be using some forms of technology that will present significant challenges to ESI preservation and production as the member of that social group enter the work force.

Paul Gentile, Senior Director, Product Marketing at LogMeIn (a.k.a., GoToMeeting) had this observation regarding millennials impact on the workforce:

The major shifts taking place in the modern workforce—remote working, geographically distributed teams, the growing popularity of online collaboration tools—can be attributed to the millennial generation’s preferences that flow into their careers.

But is that really accurate? Haven’t those changes already taken place? Aren’t millennials already part of the work force and using the same tools as the rest of us? Is there some rising tide of millennial software that will befuddle legal technologists in the coming years or are we all on the same technology flight, just some of us are sitting in first class chatting on our tablets on free Wi-Fi while the people in steerage are struggling to sign in to the Boingo signal so they can pay an outrageous fee for three hours of horribly slow connectivity?

In this paper, we will take a look at millennials, what motivates them and how they differ from previous generations and what the impact of millennials is on legal technology and eDiscovery, as follows:

  1. Understanding Millennials and How They Differ from Previous Generations
  2. Drivers for Millennials’ Thinking Today
  3. Impact of Millennials on Legal Technology and eDiscovery
  4. Conclusions and Recommendations

We’ll publish Part 2 – Understanding Millennials and How They Differ from Previous Generations – on Friday.

So, what do you think?  Have the habits of millennials impacted eDiscovery for your organization?  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.

This Blog Post Will Not Be Automatically Deleted, But Your Instant Message Might Be: eDiscovery Trends

The sources of electronically stored information (ESI) are more varied than ever.  Now, they routinely include text messages and messages from instant messaging apps.  But, depending on the instant message app – or the archive option for any messaging app, that ESI might not be available at litigation time.

In LegalTech® News (This Article Will Self-Destruct: Behind Ephemeral Messaging’s In-House Rise, written by Rhys Dipshan), the author notes that the rise of ephemeral messaging, self-erasing communications “have gone from spy movie lore to everyday consumer technology.”  That technology may be welcomed by privacy advocates, but not so much by those responsible for compliance, investigations and litigation efforts.  And, while ephemeral messaging was once only the focus of a handful of messaging apps, they’re now being offered by widely used services like Gmail and Facebook.

Remember the Waymo v. Uber case?  In that case, Waymo sought sanctions for Uber’s use of the ephemeral messaging app Wickr for communications, but California District Judge William Alsup ruled that Waymo could inform the jury of the situation and have them reach their own conclusions – in part, because Waymo also disclosed it used ephemeral messaging apps in-house as well.

Ephemeral messaging apps are becoming more prevalent – and they’re even becoming more accepted from a regulatory standpoint.  In April 2019, for example, the Department of Justice (DOJ) rescinded a policy requiring companies to restrict their employees’ use of ephemeral messaging apps if they wanted credit for cooperating with DOJ enforcement actions under the Foreign Corrupt Practices Act. The new DOJ policy now only requires companies to implement “appropriate guidance and controls on the use of personal communications and ephemeral messaging platforms.”

Gareth Evans, eDiscovery expert and partner at Redgrave, noted that one of the most fundamental uses for ephemeral messaging is to help organizations more easily delete data they shouldn’t be keeping in the first place.

“Simply, if there is no business purpose or business need for retaining the messaging, if there is no legal requirement to keep it, that in itself is a good reason not to be keeping it. And by keeping communications [you don’t need], you run certain risks.”

That’s great when there isn’t a duty to preserve (i.e., when you anticipate litigation).  But, what about when that duty exists?

For years, we’ve discussed the importance of suspending auto delete programs when anticipating litigation and we’ve discussed cases where failure to do so can lead to sanctions (like this one and this one).  Historically, those auto delete programs have been associated with email, but they are becoming more associated with text and other messaging apps, as well.  And, it’s important to note that while some messaging apps are ephemeral by default, most (if not all) messaging apps can be set to automatically delete messages after a period of time – including text messaging apps like the text message app for iPhones, which is set to retain messages “forever” by default, but can be changed to a 1 year or even 30 day retention period.  That’s why it’s become more important than ever to address automatic deletion for text and other messaging apps when litigation is anticipated to avoid potential spoliation.

So, what do you think?  Does your organization use ephemeral messaging apps?  If so, how does it handle the use of those apps during litigation?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © CBS Television Distribution.

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 Grants Motion to Compel Production of Telephone Records from Individual Plaintiff: eDiscovery Case Law

In Siemers v. BNSF Railway Co., No. 8:17-cv-360 (D. Neb. Apr. 8, 2019), Nebraska Magistrate Judge Susan M. Bazis finding that the plaintiff’s telephone records are discoverable pursuant to Fed. R. Civ. P. 26, that they are not subject to a privilege claim just because plaintiff’s counsel’s telephone number may appear in the records and that privacy issues are minimal to non-existent (since the at-issue records do not contain the substance of communications), ordered the plaintiff to produce his telephone records within one week of the order.

Case Background

In this case regarding the plaintiff’s suit against his former employer for alleged violations of the Federal Employers Liability Act (“FELA”), the defendant requested production of the plaintiff’s cellular telephone records from November 1, 2016 (the day before the claimed injury incident that is the basis of Plaintiff’s lawsuit) to present. After the plaintiff refused to produce any records in response to the defendant’s request, a discovery dispute conference was held in October 2018, with the Court finding that the plaintiff’s communications with coworkers or others from the defendant and telephone records evidencing the same were relevant and discoverable, and ordered the parties to further confer regarding production of these items.

The plaintiff then issued a subpoena to his cellular telephone provider and received a listing of incoming and outgoing telephone calls and text messages, but not the substance of any communications. Nonetheless, the plaintiff refused to produce to the defendant the telephone records produced to him in response to his subpoena.

In the final pretrial conference, the defendant argued that the records were discoverable because whether and how often plaintiff has communicated with BNSF coworkers or management since his alleged injury could have credibility considerations, that identifying the fact that a communication occurred between the plaintiff and his attorney was not privileged or, alternatively, that it was not unduly burdensome to redact those references and that no privacy interest was implicated in the telephone records because the records do not contain the substance of any communications.  The plaintiff argued that the defendant’s request was “overbroad on its face and therefore not reasonably calculated to lead to the discovery of relevant information” and also contended that the discovery sought by the defendant was “unreasonably cumulative or duplicative and could have been obtained from other sources that is more convenient, less burdensome, or less expensive.”

Judge’s Ruling

Considering the respective arguments, Judge Bazis ruled as follows:

  1. “Plaintiff’s telephone records from November 1, 2016 to present and any other records received by Plaintiff in response to his subpoena to his cellular telephone provider are discoverable pursuant to Fed. R. Civ. P. 26. BNSF is entitled to discover whether and how often Plaintiff has communicated with coworkers or BNSF management since his alleged injury.
  2. The fact that Plaintiff’s counsel’s telephone number may appear in the records does not render them subject to a privilege claim. Plaintiff may redact references to communications between Plaintiff and Plaintiff’s counsel, which the Court finds is not overly burdensome.
  3. Privacy considerations of Plaintiff or third parties not involved in this litigation are minimal to non-existent since the at-issue records do not contain the substance of communications.”

As a result, Judge Bazis ordered (in all caps, no less) the plaintiff “to produce to BNSF all records received in response to Plaintiff’s subpoena to his cellular telephone carrier” within one week of the order, noting that he could “redact references to communications between Plaintiff’s counsel and Plaintiff (but is not required to do so to maintain privilege claims regarding the substance of the communications).”

So, what do you think?  Was that appropriate or was the defendant’s request overbroad?  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.

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.

In Decision That Sounds the “Death Knell” for Fifth Amendment Protection, Defendant Ordered to Provide Cell Phone Password: eDiscovery Case Law

In Commonwealth v. Jones, SJC-12564 (Mass. Mar. 6, 2019), the Supreme Judicial Court of Massachusetts reversed a lower court judge’s denial of the Commonwealth’s renewed Gelfgatt motion (where the act of entering the password would not amount to self-incrimination because the defendant’s knowledge of the password was already known to the Commonwealth, and was therefore a “foregone conclusion” under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights), and the court remanded the case to the Superior Court for entry of an order compelling the defendant to enter the password into the cell phone at issue in the case.

Case Background

In this case involving allegations that the defendant was trafficking a person for sexual servitude, the Commonwealth of Massachusetts seized a cell phone from the defendant that it believed contained material and inculpatory evidence, but was unable to access the phone’s contents because they were protected by a passcode.  The Commonwealth sought to compel the defendant to decrypt the cell phone by filing a motion for an order requiring the defendant to produce a personal identification number access code in the Superior Court.

The central legal issue concerned whether compelling the defendant to enter the password to the cell phone would violate his privilege against self-incrimination guaranteed by both the Fifth Amendment and art. 12.  The Commonwealth argued that under the decision in Commonwealth v. Gelfgatt, 468 Mass. 512, 11 N.E.3d 605 (2014), the act of entering the password would not amount to self-incrimination because the defendant’s knowledge of the password was already known to the Commonwealth, and was therefore a “foregone conclusion” under the Fifth Amendment and art. 12. Following a hearing, a judge denied the Commonwealth’s motion, concluding that the Commonwealth had not proved that the defendant’s knowledge of the password was a foregone conclusion under the Fifth Amendment.

Several months later, the Commonwealth renewed its motion and included additional factual information that it had not set forth in its initial motion. The judge denied the renewed motion, noting that because the additional information was known or reasonably available to the Commonwealth when the initial motion was filed, he was “not inclined” to consider the renewed motion under the Massachusetts Rules of Criminal Procedure.  The Commonwealth then filed a petition for relief in the county court, and the single justice reserved and reported the case to the full court. The single justice asked the parties to address three specific issues, in addition to any other questions they thought relevant:

  1. What is the burden of proof that the Commonwealth bears on a motion like this in order to establish a “foregone conclusion,” as that term is used in Commonwealth v. Gelfgatt?
  2. Did the Commonwealth meet its burden of proof in this case?
  3. When a judge denies a ‘Gelfgatt’ motion filed by the Commonwealth and the Commonwealth thereafter renews its motion and provides additional supporting information that it had not provided in support of the motion initially, is a judge acting on the renewed motion first required to find that the additional information was not known or reasonably available to the Commonwealth when the earlier motion was filed before considering the additional information?

Court’s Ruling

In an opinion written by Justice J. Kafker, with regard to question 1, he wrote that: “we conclude that when the Commonwealth seeks a Gelfgatt order compelling a defendant to decrypt an electronic device by entering a password, art. 12 requires that, for the foregone conclusion to apply, the Commonwealth must prove beyond a reasonable doubt that the defendant knows the password.”

With regard to question 2, Justice Kafker wrote: “The defendant’s possession of the phone at the time of his arrest, his prior statement to police characterizing the LG phone’s telephone number as his telephone number, the LG phone’s subscriber information and CSLI records, and Sara’s statements that she communicated with the defendant by contacting the LG phone, taken together with the reasonable inferences drawn therefrom, prove beyond a reasonable doubt that the defendant knows the password to the LG phone. Indeed, short of a direct admission, or an observation of the defendant entering the password himself and seeing the phone unlock, it is hard to imagine more conclusive evidence of the defendant’s knowledge of the LG phone’s password. The defendant’s knowledge of the password is therefore a foregone conclusion and not subject to the protections of the Fifth Amendment and art. 12.”

With regard to question 3, Justice Kafker wrote: “Although some, if not all, of the additional information included in its renewed motion may very well have been available to the Commonwealth at the time it filed its initial motion, in light of the nature and purpose of Gelfgatt motions and the circumstances of this case, the judge erred in concluding that he need not consider the additional information “[a]bsent a showing of new evidence not otherwise available to the Commonwealth.” The motion judge therefore abused his discretion in denying the Commonwealth’s renewed Gelfgatt motion.”

As a result, the motion judge’s denial of the Commonwealth’s renewed Gelfgatt motion was reversed, and the case was remanded to the Superior Court for entry of an order compelling the defendant to enter the password into the cell phone

Justice J. Lenk, while concurring with the decision, also said this: “The court’s decision today sounds the death knell for a constitutional protection against compelled self-incrimination in the digital age. After today’s decision, before the government may order an individual to provide it with unencrypted access to a trove of potential incriminating and highly personal data on an electronic device, all that the government must demonstrate is that the accused knows the device’s passcode. This is not a difficult endeavor, and in my judgment, the Fifth Amendment and art. 12 demand more. That is, before the government may compel an accused’s assistance in building a case against that accused, the government must demonstrate that it already knows, with reasonable particularity, of files on the device relevant to the offenses charged, and that the defendant knows the passcode to unlock them. Because I conclude that the government here met those burdens, I join in the court’s result.”

So, what do you think?  Should defendants be ordered to provide their passcodes, even if it leads to incriminating evidence against them?  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.

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.

In Lawsuit Over Prince Music, Court Grants Monetary But Not Adverse Inference Sanctions (Yet): eDiscovery Case Law

In Paisley Park Enter., Inc. v. Boxill, No. 17-cv-1212 (WMW/TNL), (D. Minn. Mar. 5, 2019), Minnesota Magistrate Judge Tony N. Leung granted in part the plaintiffs’ Motion for Sanctions Due to Spoliation of Evidence, ordering the Rogue Music Alliance (“RMA”) Defendants to pay reasonable expenses, including attorney’s fees and costs, that Plaintiffs incurred as a result of the RMA Defendants’ “misconduct”, and also ordered the RMA Defendants to pay into the Court a fine of $10,000, but chose to defer consideration of adverse inference instruction sanctions to a later date, closer to trial.

Case Background

In this infringement case involving release of previously unreleased music by the late artist Prince, the estate of Prince filed suit against George Ian Boxill, a sound engineer who worked with Prince and allegedly took tracks of certain songs that he worked on with Prince in April 2017, as well as RMA and Deliverance, LLC.  The plaintiffs subsequently added David Staley and Gabriel Solomon Wilson (principals of RMA and Deliverance) and two law firms in June 2018 to the lawsuit.

In December 2017, after Plaintiffs filed their first amended complaint, they, RMA, Deliverance, and Boxill, stipulated to certain protocols regarding the discovery of ESI in which the parties indicated that they had taken “reasonable steps to preserve reasonably accessible sources of ESI.”  The Court then issued its pretrial scheduling order in January 2018, directing the parties to preserve “all electronic documents that bear on any claims, defenses, or the subject matter of this lawsuit.”

During discovery, the plaintiffs received a third-party production of documents from a public relations firm that the defendants had hired which included text messages that Wilson sent to an employee of the public relations firm. The plaintiffs then filed a motion to compel discovery from RMA, seeking production of text messages that Staley and Wilson sent to each other and third parties and the Court ordered the defendants to produce all responsive text messages on July 19, 2018.  During a meet and confer in September 2018, counsel for Wilson, Staley, RMA and Deliverance indicated that they could not produce responsive text messages because they had not preserved their text messages, indicating that text messages had not been preserved because Staley and Wilson did not disengage the auto-delete function on their phones and because Staley had wiped and discarded his phone in October 2017 and Wilson had wiped and discarded his phone in January 2018 and then wiped and discard his new phone in May 2018.  No back-up data existed for either phone, leading to the plaintiffs’ motion for sanctions under Rule 37(e)(1), 37(e)(2) and 37(b)(2)(A).

Judge’s Ruling

With regard to the defendants’ duty to preserve, Judge Leung ruled that “the duty to preserve evidence arose no later than February 11, 2017, when Staley sent an e-mail regarding his plans to release the music at issue here. In that e-mail, Staley acknowledged the riskiness of his and RMA’s position and indicated that the Prince Estate could challenge their actions. Staley referred specifically to the possibility of litigation in that e-mail, noting that RMA was not concerned by a lawsuit because it had been indemnified by Boxill. It is apparent, based on this letter, that the RMA Defendants anticipated litigation following their release of the Prince music.”

With regard to whether the defendants took reasonable steps to preserve relevant ESI, Judge Leung noted that “It takes, at most, only a few minutes to disengage the auto-delete function on a cell phone” and stated “Failure to follow the simple steps detailed above alone is sufficient to show that Defendants acted unreasonably.”  He then added:

“But that is not all the RMA Defendants did and did not do. Most troubling of all, they wiped and destroyed their phones after Deliverance and RMA had been sued, and, in the second instance for Wilson, after the Court ordered the parties to preserve all relevant electronic information, after the parties had entered into an agreement regarding the preservation and production of ESI, and after Plaintiffs had sent Defendants a letter alerting them to the fact they needed to produce their text messages. As Plaintiffs note, had Staley and Wilson not destroyed their phones, it is possible that Plaintiffs might have been able to recover the missing text messages by use of the “cloud” function or through consultation with a software expert. But the content will never be known because of Staley and Wilson’s intentional acts. The RMA Defendants’ failure to even consider whether Staley and Wilson’s phones might have discoverable information before destroying them was completely unreasonable. This is even more egregious because litigation had already commenced.”

Judge Leung rejected several arguments from the defendants as to why their decision not to preserve text messages was reasonable, including the claim that “they could not possibly be expected to know that they should preserve text messages”, stating “None of these arguments is persuasive”.  Judge Leung also found that “There is no doubt that Plaintiffs are prejudiced by the loss of the text messages.”  But, with regard to the adverse inference sanctions sought by the plaintiffs, he also said that “given the fact that discovery is still on-going, the record is not yet closed, and the case is still some time from trial, the Court believes it more appropriate to defer consideration of those sanctions to a later date, closer to trial”.  He did, however, order the RMA Defendants to “pay reasonable expenses, including attorney’s fees and costs, that Plaintiffs incurred as a result of the RMA Defendants’ misconduct” and also ordered the RMA Defendants to pay into the Court a fine of $10,000.

So, what do you think?  Should the defendants have received the adverse inference sanction as well?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

For more info on this ruling, check out Ralph Losey’s e-Discovery Team® blog here.

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.

Now, Wait Just an Internet Minute!: eDiscovery Trends

Have I mentioned lately that I love…an infographic?  Well, let me mention it again!  The past three years, we’ve taken a look at a terrific infographic each year that illustrated what happens within the internet in a typical minute.  Last week, the 2019 internet minute graphic came out, so, let’s take a look at what happens in an internet minute in 2019.

The updated graphic shown above, once again created by Lori Lewis, illustrates what happens within the internet in a typical minute in 2019.  As always, there are a couple of different categories tracked in this graphic than last year’s, but most are the same and those that are carried forward are, once again, (almost) all up compared to last year – some more than others.  Once again, Netflix more than doubled and Instagram nearly doubled, while others sources showed more incremental gains.

Here is a comparison between 2018 and 2019 (we previously published the graphic for 2016 and 2017):

Needless to say, I’ll be discussing this in my presentation next week at the University of Florida E-Discovery Conference.

In her post, Lori also goes through some of her observations on the trends.  Once again, I can’t vouch for the accuracy of the numbers, so take them for what it’s worth.  So, why do I love infographics so much?  One reason is because they make my job easier!  :o)

So, what do you think?  How have the challenges of various sources of data affected your organization?  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.

Emoji Are Showing Up in Court Cases More and More: eDiscovery Trends

Without a doubt, our forms of communication are continuing to evolve from just email and we now have to add social media, text messaging and other messaging apps as forms of communication that need to be routinely preserved, collected, processed, reviewed and produced.  But, it’s not just the forms of communication that are changing, it’s the way we communicate that is changing as well.  So, you may or may not be surprised that emoji (yes, the plural of “emoji” is still “emoji”, at least officially) are showing up in court cases exponentially.

As discussed in The Verge (Emoji are showing up in court cases exponentially, and courts aren’t prepared, written by Dani Lee), emoji are showing up as evidence in court more frequently with each passing year. Between 2004 and 2019, there was an exponential rise in emoji and emoticon references in US court opinions, with over 30 percent of all cases (53 out of 171 all time) appearing in 2018, according to Santa Clara University law professor Eric Goldman, who has been tracking all of the references to “emoji” and “emoticon” that show up in US court opinions.  Yes, there’s a guy who tracks that stuff!  Here’s a chart from Goldman, showing the rise of cases since 2004:

By the way, you do know the difference between an emoji and an emoticon, right?  An emoticon is created out of text, primarily via the use of punctuation marks, whereas an emoji is a small image, a pictograph. Nearly everyone has used an emoji and emoticon at least once in their lives, even if they didn’t know what it was called.  Personally, I’m not a big fan of emoticons… ;o)

Goldman has written extensively on the subject of “emoji law” – including his blog post Emoji Law 2018 Year-in-Review and his paper published last year titled Emojis and the Law.

So far, the emoji and emoticons have rarely been important enough to sway the direction of a case, but as they become more common, the ambiguity in how emoji are displayed and what we interpret emoji to mean could become a larger issue for courts to contend with.  Want a couple of examples?  Here you go:

  • Bay Area prosecutors were trying to prove that a man arrested during a prostitution sting was guilty of pimping charges, and among the evidence was a series of Instagram DMs he’d allegedly sent to a woman. One read: “Teamwork make the dream work” with high heels and money bag emoji placed at the end. Prosecutors said the message implied a working relationship between the two of them. The defendant said it could mean he was trying to strike up a romantic relationship. Another message from the defendant included the crown emoji, which was said to signify that the “pimp is the king.”
  • In 2017, a couple in Israel was charged thousands of dollars in fees after a court ruled that their use of emoji to a landlord signaled an intent to rent his apartment. After sending an enthusiastic text confirming that they wanted the apartment, which contained a string of emoji including a champagne bottle, a squirrel, and a comet, they stopped responding to the landlord’s texts and went on to rent a different apartment. The court declared that the couple acted in bad faith, ruling that the “icons conveyed great optimism” that “naturally led to the Plaintiff’s great reliance on the Defendants’ desire to rent his apartment,” according to Room 404.

Still, it’s rare for cases to turn on the interpretations of emoji. “They show up as evidence, the courts have to acknowledge their existence, but often they’re immaterial,” Goldman says. “That’s why many judges decide to say ‘emoji omitted’ because they don’t think it’s relevant to the case at all.” But emoji are a critical part of communication, and in cases where transcripts of online communication are being read to the jury, they need to be characterized as well instead of being skipped over. “You could imagine if you got a winky face following the text sentence, you’re going to read that sentence very differently than without the winky face,” he says. In the “pimp” case above, the ruling didn’t ultimately hinge on the interpretation of emoji, but they still provided evidentiary support.

Nonetheless, as Craig Ball has noted in several presentations that I’ve seen, the handling of emoji and emoticons will become increasingly important in discovery over time.  And, here’s one more challenge to leave you with – emoji often render differently across platforms, so the emoji you see may not be the emoji your audience sees in social media posts or text/other messages.  We may have to consult those Egyptian hieroglyphics textbooks soon to see how they managed to communicate thousands of years ago!

So, what do you think?  Are you surprised that emoji and emoticons are becoming an increasing part of legal 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 Declines to Order Plaintiff to Produce Cell Phone in Employment Discrimination Case: eDiscovery Case Law

In Santana v. MKA2 Enterprises, Inc., No. 18-2094-DDC-TJJ (D. Kan. Jan. 8, 2019), Magistrate Judge Teresa J. James denied the defendant’s Motion to Compel regarding the defendant’s request for the plaintiff to produce all of his cellphones for inspection and copying.  Judge James did order the plaintiff to “produce complete copies of all responsive text messages to the extent they have not already been produced.”

Case Background

In this employment discrimination case where the plaintiff alleged he was discriminated against, retaliated against, and terminated because of his race, the parties were unable to resolve their disputes as to Request for Production No. 21, which stated:

“Produce all cellular telephones used by you from the date your employment with Defendant started to the present for purposes of inspection and copying.”

The plaintiff objected, stating that “this request seeks irrelevant information and is not proportional to the needs of this case. The request is unduly burdensome and invasive in light of the nature of the case—Defendant has shown no need for the production of Plaintiff’s cell phone.”

Although not the subject of the motion to compel, the defendant also requested that the plaintiff “produce a full and complete copy of all text messages between (Plaintiff) and Defendant and between (Plaintiff) and current or former employees of Defendant.”  The plaintiff objected to that request as well, stating that the request “seeks irrelevant information”.

Judge’s Ruling

Judge James stated that “Defendant’s RFP No. 21 is broad in scope, requesting production of all Plaintiff’s cell phones for inspection and copying, without any limitation on the data ultimately to be produced from the copy or image of the phone(s)” and observed that “Defendant sets out no protocol or process through which the data it deems responsive would be culled from the copy or image of the phone(s) and any unresponsive and/or privileged data removed or protected.”

Judge James referenced Advisory Committee Notes to Fed. R. Civ. P. 34(a):[8], which stated (in part): “Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy… Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.”

Judge James also noted that “Defendant cites no cases involving the imaging of a cell phone and only one case in which a computer inspection and imaging was ordered” and (unlike that case), the plaintiff hadn’t shown any history of providing incomplete and inconsistent responses to production requests.  As a result, Judge James stated:

“The Court finds that Defendant’s RFP No. 21 is overly broad, unduly burdensome and not proportional to the needs and issues of this case. Defendant’s separate request for the narrowed scope of text messages also illustrates that Defendant has the ability to obtain relevant cell phone data through less invasive means. In accordance with Rule 34(a), the Court must guard against the undue intrusiveness that would result from the requested inspection and copying of Plaintiff’s cell phone(s). The Court will therefore sustain Plaintiff’s objections to RFP No. 21.”

Judge James did direct the plaintiff to “supplement his response to Request for Production No. 41 and produce complete copies of all responsive text messages to the extent they have not already been produced.”

So, what do you think?  Was the judge right or should she have compelled production of the cell phone?  Could the defendant have handled the situation differently?  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.

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.

Mobile to the Mainstream All in One Place: eDiscovery Best Practices

Craig Ball has had a lot to say about mobile device discovery, including various posts on his excellent Ball in Your Court blog (we’ve covered several of those, including this one and this one).  Now, he has assembled all of that good information in a single guide for reviewing all at once!

Mobile to the Mainstream: Preservation and Extraction of iOS Content for E-Discovery is a 24-page PDF guide that is comprised of two sections:

  • Section I (pp. 3-8 and Appendices 1-3) addresses simple, scalable preservation of iPhone and iPad content, enabling litigants to meet the duty to preserve data in anticipation of civil litigation. It informs attorneys who aren’t tech-savvy how to handle iOS-device preservation and explains why there’s little burden or cost attendant to preserving iPhones and iPads. Unlike in other scenarios, Craig points out here the benefits of custodian-directed collection (like the fact that the custodian doesn’t have to give up their phone) and the tamper-proof nature of the iPhone backup process to provide a step-by-step process to perform the backup.
  • Section II (pp. 17 et seq. and Appendix 4) looks at simple, low-cost approaches to extracting relevant mobile data to a standard e-discovery workflow and offers a Mobile Evidence Scorecard to promote consensus as to what forms of mobile content should be routinely collected and reviewed in e-discovery, giving due consideration to need, speed and expense. The Scorecard itself is terrific as it provides a simple handy reference guide regarding the different types of mobile data and the ease of collection, ease of review, potential relevance and whether you should expect to routinely collect that mobile data type.  Craig also identifies several iPhone Backup Data Extraction Tools that are worth checking out, as well.

In the introduction to the guide, Craig sums up the need for these guidelines and tips, as follows:

“Chances are you’re reading this on your phone or tablet. If not, I’ll bet your phone or tablet are at hand. Few of us separate from our mobile devices for more than minutes a day. On average, cell users spend four hours a day looking at that little screen. On average. If your usage is much less, someone else’s is much more.

It took 30 years for e-mail to displace paper as our primary target in discovery. It’s taken barely 10 for mobile data to unseat e-mail as the Holy Grail of probative electronic evidence. Mobile is where evidence lives now; yet, mobile data remains “off the table” in discovery. It’s infrequently preserved, searched or produced.”

Craig will also be presenting regarding mobile devices at the University of Florida E-Discovery Conference in March.  As I noted yesterday, early bird registration is open for $49 for both in person or livestream until January 31st!  That’s 75% off the in-person price!  You can register here to attend, either in person or via livestream.  Do it quickly and save!

Craig will also be presenting as part of our NineForum educational presentations CloudNine is conducting at Legaltech.  More on that program to come in the next few days – it’s very exciting!

So, what do you think?  Do you routinely deal with mobile devices in discovery or is it still rare?  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.