Preservation

Increasing Your Technological Competence, Part 1

From the CloudNine family to yours, we wish you a wonderful holiday season! As a gift of knowledge, this article will focus on defining and maintaining high levels of technological competence. To effectively represent their clients, a lawyer must actively update their knowledge on legislative changes. The American Bar Association referred to this skill in Rule 1.1 as “competence.” The rule originally called for lawyers to possess the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” [1] In 2012, the ABA expanded the definition through an amendment concerning technological competence. According to Matthew Knouff from ESI Survival Guide, 39 states adopted this rule in some form by March 2021. South Dakota, Rhode Island, Oregon, New Jersey, Nevada, Mississippi, Maryland, Maine, Hawaii, Georgia, and Alabama are the main exceptions to this trend. [2] Though Rule 1.1’s amendment laid out the framework, it didn’t provide instructions on how lawyers should build their technological competence. To achieve this duty, the California Bar committee issued an opinion, outlining 9 necessary skills. Since this opinion was crafted through examinations of federal cases, these skills could be applicable to various states.

Explanations of the First Five Skills

  1. Initially assess e-discovery needs and issues, if any.

In fear of the cost and rules of e-discovery, some lawyers try to avoid the practice altogether. By doing so, lawyers disadvantage their clients by missing out on relevant ESI. Instead of yielding to eDiscovery trepidation, conduct an initial assessment to determine the cost, timeframe, and data types needed for the investigation. Consider the value of the claims in comparison with the costs of processing and production. Determining which data types must be collected and how much time is allotted for the process. These examinations can act as a starting point in assessing the proportionality of the production request.

  1. Implement or cause to implement appropriate ESI preservation procedures.

To accomplish this skill, lawyers should acquaint themselves with their client’s IT setup. Once the preservation responsibilities have been established, clients and custodians should be informed with clear, written instructions. It’s important to follow up with clients and custodians to ensure that they are complying with the preservation requirements to avoid spoliation sanctions. If requesting ESI from opposing counsel, send a preservation letter that identifies what data should be preserved and where it can be found.

  1. Analyze and understand a client’s systems and storage.

Get familiar with your client’s IT environment and staff. It’s beneficial to request data maps of complex systems and speak directly to the IT staff. Through this knowledge and ease in communication, lawyers will gain a better sense of where relevant ESI may lie. After determining the location of the data, one can access how difficult and/or expensive it will be to access the information.

  1. Advise the client about available options for collection and preservation of ESI.

The scope and cost of preservation might be huge when dealing with larger companies due to their larger volumes of data and longer lists of custodians. However, lawyers should not concern themselves with burdensome collections unless the information is proportional to the case. During Rule 26(f) conferences, consult opposing counsel on the scope of discovery in relation to the costs of collection and production. If the parties determine that the discovery request is disproportional, seek guidance from the court.

  1. Identify custodians of relevant ESI.

After identifying the custodians who possess relevant data, categorize the list into two categories: primary custodians and secondary custodians. As the terms suggest, primary custodians have more direct involvement with the information than secondary custodians. To save money, counsel can decide to initially search for primary custodians within a limited time frame. If necessary and proportional, the search can be expanded to encompass secondary custodians. [3]

 

[1] Model Rules of Professional Conduct Rule 1.1

[2] Matthew Knouff, “How to Gain & Maintain Technology Competence — Element 1: Education — Part 1 of 3,” March 30, 2021.

[3] Hon. Joy Flowers Conti and Richard N. Lettieri, “E-Discovery Ethics: Emerging Standards of Technological Competence,” The Federal Lawyer, 2015.

Need a Data Retention Policy? Here’s How to Build One

Now that most industries are going paperless, companies must create a comprehensive data retention policy. The purpose of a data retention policy is to establish procedures for labeling, storing, and deleting electronic (and physical) records. [1]  Most companies acknowledge the need for a retention policy, but they don’t commit to creating one. A 2000 ABA study found that 83% of the responding companies had no established protocol for handling discovery requests. Despite this unsettling statistic, 77% of the companies expected discovery requests to increase in the future. [2]  Many reasons support the need for comprehensive retention policies. One of the most pressing reasons is the explosion of ESI in recent years. For instance, corporate email alone is estimated to increase annually at a compounded rate of over 13%.  Without a data retention policy, an organization in the midst of litigation would be responsible for organizing large volumes of data with little time to do so. By proactively developing data management policies, companies will avoid the pressures of looming deadlines. Ensuring that information is properly handled also minimizes a company’s risk for sanctions. [1]  The following is a list of steps and suggestions for developing a data retention policy.

  • Do your research on relevant laws

Certain state and federal laws mandate specific preservation and deletion practices. HIPAA and GLBA are older examples of ESI regulations enacted in the late 1990s. However, states are constantly reviewing and revising their ediscovery laws, so it’s important to stay on top of any legislation changes.

  • Determine when to archive or delete data

While corporations are not expected to store every single electronic document, deletions must be orderly and purposeful. The practice of strategically deleting unneeded data is referred to as “defensible deletion.” When done correctly, defensible deletion is cost-efficient, storage-friendly, and most importantly, legal. Defensible deletion is protected by Rule 37(e) of the Federal Rules of Civil Procedure (FRCP). The rule prohibits sanctions against electronic records that were lost during good-faith deletion procedures. [3]

  • Review how your data is housed

In this step of the process, it’s important to ask what, where, and how. What data types are being stored, and how should they be classified (i.e. social media, email, transactions)? What are the retention policies for each medium? What’s the purpose of preserving this information? Where is it being stored, and does this location need to be changed to a better one? How long does the data need to be stored in order to comply with applicable state and federal laws?

  • Monitor your policy

Regularly review your policy to ensure that your company is following its outlined regulations. If you notice that your company is deviating from the policy’s storage and deletion procedure, fix the issue as soon as possible to minimize any legal risks. Routine audits also make it easier to make policy adjustments as needed.

  • Assign accountability

Determine who will be responsible for enforcing the policy throughout the company. This person or department must be well-versed on the policy’s provisions, and they must be ready to testify in court about the company’s retention procedures. [2]

  • Limit your paper trail

Consider a provision that requires electronic copies of physical documents. Some companies are still hesitant to transition to completely paperless operations. Though this hesitancy is understandable, it’s recommended to save an electronic version of all paper records. This suggestion is merely that, just a suggestion. Completely converting to electronic records is not a mandatory step in creating an effective data retention policy. However, this step would speed up the process of identifying relevant data for litigation. [1]

[1] Carlos Leyva, “Data Retention & eDiscovery,” Digital Business Law Group.

[2] “Document Retention & Destruction Policies for Digital Data,” Applied Discovery, LexisNexis, 2004.

[3] Law Offices of Salar Atrizadeh, “Electronic Discovery and Data Retention Policies,” Internet Lawyer Blog, May 18, 2020.

Top Ten Tips for Working with eDiscovery: eDiscovery Best Practices

I stumbled across a post in our blog that Tom O’Connor did over a year ago to conclude his series titled Will Lawyers Ever Embrace Technology?  As usual, Tom did a great job and, in this post, he offered his top ten tips for working with eDiscovery.  Tom provided a top ten list terrific enough to make David Letterman proud, but I thought the list could use some additions – in the form of links to resources for the items.  Here goes!

As a reminder, here are the top ten tips from Tom’s post:

  1. Read the Rules
  2. Read the Decisions
  3. Know the Terms
  4. Know Where Your Data Is
  5. Talk to The IT Department
  6. Talk to The Records Management People
  7. Make a Records Management Policy
  8. Make A Litigation Hold Policy
  9. Enforce the Litigation Hold Policy
  10. Meet with Your Client’s Inside Counsel

Let’s take them one (or sometimes two) at a time.

Read the Rules: As Tom notes, the Federal Rules of Civil Procedure (FRCP) lay out the framework for your obligations in handling eDiscovery, but many states have rules that may differ from the FRCP.  Not only that, but the FRCP is comprised of a lot of rules which don’t necessarily have to do with eDiscovery.  So, which ones do you need to know?  There are two notable Rules updates that have significant eDiscovery impact: the 2006 and 2015 updates.  Fortunately, we covered them both in our webcast titled What Every Attorney Should Know About eDiscovery in 2017, which (as you can tell by the title) is three years old now (but still relevant for this topic).  You can click on the webcast to get access to the slides (via the attachments link) if you don’t want to sit through the hour-long webcast.  As for states rules, K&L Gates has a listing of states that have enacted eDiscovery rules (not all of them have), so you can check your state (and other states) here.

Read the Decisions: To find decisions related to eDiscovery, you can find plenty of those right here on the eDiscovery Daily blog – for free!  We’re up to 734 lifetime case law related posts, covering 566 unique cases since our inception back in 2010.  You can see them all here or wind them down year by year here.  If you want even more decisions (1,500 to 2,000 a year, not to mention other terrific resources), you can find those at our go to site for case law – eDiscovery Assistant.

Know the Terms: Tom notes in his post the importance of knowing the terms and even provides a terrific resource – The Sedona Conference – for a great terms list, which was just updated and we covered it and how to get it here!

Know Where Your Data Is: When it comes to knowing where your data is, a data map comes in really handy.  And, with GDPR and other factors emphasizing data privacy, that’s more important than ever.  Here are several templates to get started.

Talk to The IT Department: Tom says “You’re Lewis and Clark, they’re Sacajawea. You cannot…absolutely cannot…navigate without them.”  Knowing the terms and understanding data maps (see previous two paragraphs) will help bridge the communication gap and help here too.

Talk to the Records Management People and Make a Records Management Policy: Records Management is a term that has been around for a long time.  A more recent term that has become synonymous is Information Governance.  eDiscovery Daily has over 200 posts related to Information Governance, including this seven blog post series from Tom here.  Enjoy!

Make A Litigation Hold Policy and Enforce the Litigation Hold Policy: We’ve covered the topic of litigation holds several times as well during the almost 9 1/2 years of the blog, including these two posts (recently updated) where we discuss several things you need to consider when implementing your own litigation hold.

Meet with Your Client’s Inside Counsel: With all of the info you learned above, you’re well equipped to (as Tom puts it) “discuss all of the above”.  One more thing that can help is understanding topics that can be covered during the meet and confer that will benefit both you and your client.  Here’s a webcast that will help – again, you can click on the webcast to get access to the slides (via the attachments link) if you don’t want to sit through the hour-long webcast.

One more thing that Tom notes in his post is that “eDiscovery is a process comprised of separate distinct stages, any one of which may have specific software available for that stage” and that’s very true.  Certainly, that’s true at CloudNine, where, in addition to our Review product mentioned above, we also have a product that collects data from O365 and One Drive (CloudNine Collection Manager™), an Early Data Assessment platform (CloudNine Explore™), a processing and production platform known as the “swiss-army knife of eDiscovery” (CloudNine LAW™) and a tried and true desktop review platform (CloudNine Concordance®).  There are as many workflows as there are organizations conducting eDiscovery and getting the most out of software products available from CloudNine or other providers to maximize your own workflow is key to succeeding at eDiscovery.  Work with your software provider (whoever they are) to enable them to help maximize your workflow.  Help us help you!  :o)

So, what do you think?  Are you familiar with all of these resources?  If not, now you can be!  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.

Here’s a Terrific Listing of eDiscovery Workstream Processes and Tasks: eDiscovery Best Practices

Let’s face it – workflows and workstreams in eDiscovery are as varied as organizations that conduct eDiscovery itself.  Every organization seems to do it a little bit differently, with a different combination of tasks, methodologies and software solutions than anyone else.  But, could a lot of organizations improve their eDiscovery workstreams?  Sure.  Here’s a resource (that you probably already know well) which could help them do just that.

Rob Robinson’s post yesterday on his terrific Complex Discovery site is titled The Workstream of eDiscovery: Considering Processes and Tasks and it provides a very comprehensive list of tasks for eDiscovery processes throughout the life cycle.  As Rob notes:

“From the trigger point for audits, investigations, and litigation to the conclusion of cases and matters with the defensible disposition of data, there are countless ways data discovery and legal discovery professionals approach and administer the discipline of eDiscovery.  Based on an aggregation of research from leading eDiscovery educators, developers, and providers, the following eDiscovery Processes and Tasks listing may be helpful as a planning tool for guiding business and technology discussions and decisions related to the conduct of eDiscovery projects. The processes and tasks highlighted in this listing are not all-inclusive and represent only one of the myriads of approaches to eDiscovery.”

Duly noted.  Nonetheless, the list of processes and tasks is comprehensive.  Here are the number of tasks for each process:

  • Initiation (8 tasks)
  • Legal Hold (11 tasks)
  • Collection (8 tasks)
  • Ingestion (17 tasks)
  • Processing (6 tasks)
  • Analytics (11 tasks)
  • Predictive Coding (6 tasks)*
  • Review (17 tasks)
  • Production/Export (6 tasks)
  • Data Disposition (6 tasks)

That’s 96 total tasks!  But, that’s not all.  There are separate lists of tasks for each method of predictive coding, as well.  Some of the tasks are common to all methods, while others are unique to each method:

  • TAR 1.0 – Simple Active Learning (12 tasks)
  • TAR 1.0 – Simple Passive Learning (9 tasks)
  • TAR 2.0 – Continuous Active Learning (7 tasks)
  • TAR 3.0 – Cluster-Centric CAL (8 tasks)

The complete list of processes and tasks can be found here.  While every organization has a different approach to eDiscovery, many have room for improvement, especially when it comes to exercising due diligence during each process.  Rob provides a comprehensive list of tasks within eDiscovery processes that could help organizations identify steps they could be missing in their processes.

So, what do you think?  How many steps do you have in your eDiscovery processes?  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.

Mobile Collection: It’s Not Just for iPhones Anymore, 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, DOS and DON’TS of a 30(b)(6) Witness Deposition.  Now, Tom has written another terrific overview regarding mobile device collection titled Mobile Collection: It’s Not Just for iPhones Anymore that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was last Thursday, the second part was Monday and the third part was Wednesday, here’s the fourth and final part.

Conclusions

So, when you think of smart phone collection be sure to ask what OS you going to encounter.  Android phones are market leaders both here in the US and worldwide and offer corporate archiving solutions that are second to none. Your litigation opponent might actually have the droid you are looking for.

And, why is that important?  Because we’re seeing more cases where mobile device data is relevant than ever.  As I mentioned in my Millennials series last summer, Americans send about 8.5 billion texts every day!  Texts and other mobile data are routinely relevant in just about every type of litigation case.

And, we’re certainly seeing more cases where mobile device data is figuring prominently in court rulings.  Here are some cases covered by eDiscovery Daily in just the past year regarding mobile devices and (in some cases) consideration of sanctions for failing to preserve mobile device data:

The good news is that you’ve now learned about some terrific resources to preserve that mobile device data and hopefully avoid sanctions in your own cases, regardless of whether the device is Apple or Android.

So, what do you think?  Are you having to increasingly address issues associated with mobile device discovery?  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.

Court Rules on Status of “Functional Employee, Declines Sanctions as Premature: eDiscovery Case Law

In Digital Mentor, Inc. v. Ovivo USA, LLC, No. 2:17-cv-01935-RAJ (W.D. Wash. Feb. 4, 2020), Washington District Judge Richard A. Jones granted in part and denied in part the defendant’s motion to compel, ruling that the plaintiff had not shown that a consultant to the plaintiff met the criterion of being considered a “functional employee” for which all communications with the plaintiff could be considered privileged, but denying the defendant’s request for preclusion sanctions, determining those to be “premature”.

Case Background

In this case involving trademark and copyright infringement and breach of contract claims that the defendant created a “pirated” version of the plaintiff’s product, the parties had a discovery dispute stemming from William Chastain’s consulting role with the plaintiff.  The plaintiff claimed that Chastain was its “functional employee” and so his communications with the plaintiff were subject to attorney-client privilege or work product protection.  Chastain was purportedly involved in the negotiation, discussion and execution of the pertinent contracts and agreements at issue with the defendant, was a direct conduit of the plaintiff in the events leading up to this litigation and was never paid for his role and was never employed by the plaintiff.

The defendant disagreed, claiming that Chastain did not qualify as a “functional employee” and moved to compel the plaintiff to produce all documents relating to Chastain, including correspondence between Chastain, the plaintiff and/or its counsel; even documents identified DMI’s privilege log.  The defendant also sought to prohibit the plaintiff from relying upon any documentation including or relating to Chastain and any testimony from, or referring to, Chastain during hearings or trial and also sought reasonable fees and expenses in bringing the motion.

Judge’s Ruling

Noting that “as one district court indicates, ‘the dispositive question is the consultant’s relationship to the company and whether by virtue of that relationship [s]he possesses information about the company that would assist the company’s attorneys in rendering legal advice’”, Judge Jones stated: “When answered in the affirmative, the consultant is ‘in all relevant respects the functional equivalent of an employee’ and communications between corporate counsel and the consultant may be covered under attorney-client privilege.”

But, Judge Jones continued: “On the record presented, DMI has not shown that Chastain’s involvement meets this criterion. There is no documentation of Chastain’s duties vis-à-vis DMI or its corporate counsel, nor does the record demonstrate that Chastain had specialized knowledge such that counsel would rely on him to facilitate legal advice for the company…There is also little to indicate that communications between Chastain and DMI’s counsel were primarily of a legal, as opposed to a business, nature…Having found that DMI has not met its burden, the Court GRANTS Ovivo’s motion to the extent documents are only being withheld on this basis of privilege. Having found the ‘functional employee’ requirements not met, the Court will not analyze Ovivo’s claims of waiver.”

However, considering preclusion sanctions based on the defendant’s claim that Chastain destroyed relevant documents because (as the plaintiff stated) he “does not keep any emails and/or documentation as he has been a victim of corporate theft and hacking incidents in the past”, Judge Jones stated: “The Court cannot impose sanctions based on Ovivo’s allegations under Rule 37. Sanctions under Rule 37 are allowed only against a party that disobeys a court issued discovery order. However, the court’s inherent authority to impose sanctions for the wrongful destruction of evidence includes the power to exclude evidence that, given the spoliation, would ‘unfairly prejudice an opposing party.’…Although Chastain’s purported email practices seem particularly dubious, the Court agrees with DMI that Ovivo’s request for preclusion sanctions is premature. Ovivo has not presented any evidence in support of its spoliation theory other than Chastain’s failure to produce documents in response to its subpoena…Without evidence about what was purportedly destroyed, when it occurred, what extent DMI had any involvement, and any resulting prejudice, preclusion sanctions are inappropriate. The Court also declines to award attorney’s fees related to this motion.”

So, what do you think?  Is it premature to consider sanctions if the party acknowledges destroying relevant documents?  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 Collection: It’s Not Just for iPhones Anymore, Part Three

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, DOS and DON’TS of a 30(b)(6) Witness Deposition.  Now, Tom has written another terrific overview regarding mobile device collection titled Mobile Collection: It’s Not Just for iPhones Anymore that we’re happy to share on the eDiscovery Daily blog.  Enjoy!  And, BTW, Happy Birthday to my beautiful wife Paige! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was last Thursday and the second part was Monday, here’s the third part.

Google Vault and the Emphasis of Android Devices

During the same time period as when Google TakeOut hit the market, Google also created Google Vault in 2012, their web tool for preservation of data in the Google Suite. It’s easy and inexpensive but only covers some email archiving, searching, and exporting capabilities for Gmail. Unlike iOS however it has 3rd party add-ons that can securely archive Gmail messages, Gmail Notes, Appointments and some Calendar Items.

A Gartner review of many of these products notes how they quickly and easily integrate with Google Apps to make up for the deficiencies in Vault and allows archived data to be stored into one unified message archive. Some of them even can search, publish, and perform eDiscovery from the archive, which is in one central location.

So perhaps not the quick and easy solution offered by iTunes or iOS backup and, like O365, based on a web archive. But still a relatively easy and to create archives and now given the arrival of Google One, a variety of methods exist for handling Android smartphone data.

Why is all this emphasis on Android phones important? As I noted in the Introduction, it’s because Android market share is now bigger than Apple everywhere in the world. Again, while Apple iOS holds a large share of the smartphone operating systems’ market within the United States, Google Android remains the market leader with a 51.8% share as of September 2019.  Worldwide, Android has a 76% market share with iOS far behind at 22%. (Source, IDC Nov 2019)  Clearly, you’re not only as likely to need to preserve Android devices as you are iPhones, you’re more likely, possibly much more likely, to need to do so.

Apple, of course, registers strongly in actual smartphone sales because they sell the phone AND the operating system unlike Android systems which are fragmented among multiple phone manufacturers. But even here, Apple is not the market leader. Although their share of smartphone users in the US has risen roughly 20% since early 2012 and stood at 42% in Q3 2019, the combination of all Android phones at that time was 47%, led by Samsung with 25%. And that Apple growth surge in the United States goes against a global trend that has seen their market share of smartphone shipments drop to around 10 percent.

Samsung, known for consumer products worldwide including mobile devices and home entertainment systems, is the global leading smartphone vendor. Since 2012, the South Korean company has held a share of 20 to 30 percent in the smartphone market. In 2018, they shipped more than 292 million smartphones worldwide and by the third quarter of 2019, Samsung’s global market share was 21.8%.

Apple is not one to take these statistics lightly and is responding with a new cheap phone. Channel manufacturers, reported to be Hon Hai Precision Industry, Pegatron Corp. and Wistron Corp, are currently preparing their production lines and planning to start mass production next month with an official release expected in March.

A cheaper offering may help Apple compete better in price-competitive phone markets such as India and China. India, in particular, presents a substantial challenge for Apple which has a high number of Android rivals coming in at prices less than $200.  Still, Apple has set a goal of shipping more than 200 million units in 2020 and recovering some of that lost market share.

We’ll publish Part 4 – Conclusions – on Friday.

So, what do you think?  Are you having to increasingly address issues associated with mobile device discovery?  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.

Mobile Collection: It’s Not Just for iPhones Anymore, 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, DOS and DON’TS of a 30(b)(6) Witness Deposition.  Now, Tom has written another terrific overview regarding mobile device collection titled Mobile Collection: It’s Not Just for iPhones Anymore that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was last Thursday, here’s the second part.

Mobile Collection and Preservation, Courtesy of Craig Ball

As I mentioned in the Introduction, Craig Ball has provided a lot of terrific information regarding preservation and collection of data from mobile devices.  These are terrific resources that everyone who deals with discovery of mobile devices should be aware of.  His original discussion about preservation of cell phone data was a 2017 article called Custodian-Directed Preservation of iPhone Content: Simple. Scalable. Proportional and, as the title denotes, dealt with iPhones. It proposed a wonderfully simple way to preserve iPhone data using iTunes. Although it did not preserve email, content from iTunes or iBooks, some data stored in iCloud and data from Apple Pay, Activity, Health or Keychain. Additionally, it offered several advantages in Craig’s mind to an iCloud backup, primarily that it took less time and you could choose not to encrypt the backup.

I disagreed with the last point but it’s a minor quibble and not worth discussing here because, well, all good things must come to an end and Apple last year decided to end iTunes. So Craig wrote another article entitled How Will We Back Up iPhones Without iTunes? in which he noted the good thing that ended had morphed into a better thing. As he explained, “In fact, preserving iPhones may be easier for Mac users as Apple is shifting the backup tool into the Finder app.  You’ll do exactly the same thing I wrote about but Mac users with Catalina won’t even need to use iTunes to preserve mobile evidence.  It’ll be built in.”

In between those two articles, Craig also wrote a piece called Mobile to the Mainstream which discussed all the various data types on a smart phone and provided a Mobile Evidence Scorecard, which rated the data types by ease of collection, ease of review, potential relevance and whether they should be part of a routine backup collection process. Everyone should have this card.  Here is a representation of it, split into a front and back section.

And, last but not least, Craig compiled all of his accumulated wisdom about mobile evidence (well, iPhone mobile evidence) into a white paper called Mobile to the Mainstream: Preservation and Extraction of iOS Content for E-Discovery. I should note that the title violated one of Craigs most often discussed issues with searching ESI.  But search is also a topic for another day.

Craig finally turned to Androids last fall. Although that was actually not his first mention of the “other” OS, that came in a 2015 paper Opportunities and Obstacles: E-Discovery from Mobile DevicesBut a column in this venue pointed out the most recent advances in Android collection.

Called Craig Ball is “That Guy” Who Keeps Us Up to Date on Mobile eDiscovery Trends: eDiscovery Best Practices, Doug Austin noted how Craig discussed Google’s recently expanded offering of “cheap-and-easy” online backup of Android phones, including SMS and MMS messaging, photos, video, contacts, documents, app data and more.  In that discussion, Craig stated: “This is a leap forward for all obliged to place a litigation hold on the contents of Android phones — a process heretofore unreasonably expensive and insufficiently scalable for e-discovery workflows.  There just weren’t good ways to facilitate defensible, custodial-directed preservation of Android phone content.  Instead, you had to take phones away from users and have a technical expert image them one-by-one.”

Now as a character in the movie Independence Day once said …. “that’s not ENTIRELY correct.” Craig was referring to Google One, the recent addition intended to improve archiving capabilities.  But as Google notes on their own website. “We’ve taken the standard Android backup (my emphasis added) that includes texts, contacts, and apps and we’re giving you even more.”

The new automatic phone backup also addresses photos, videos, and multimedia messages (MMS) and it can all be done from a Google One app.

But backups did exist before this. Craig himself mentions Google TakeOut, which has long allowed users of Google products, such as YouTube and Gmail, to export their data to a downloadable archive file. Started with some basic services in 2011, TakeOut expanded to include Gmail and Google Calendar in 2013. By 2016, Google had grown the service to include search history and Wallet details and since then, they have also added Google Hangouts to the Takeout service. In all cases, TakeOut does not delete user data automatically after exporting.

We’ll publish Part 3 – Google Vault and the Emphasis of Android Devices – on Wednesday.

So, what do you think?  Are you having to increasingly address issues associated with mobile device discovery?  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.

Mobile Collection: It’s Not Just for iPhones Anymore

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, DOS and DON’TS of a 30(b)(6) Witness Deposition.  Now, Tom has written another terrific overview regarding mobile device collection titled Mobile Collection: It’s Not Just for iPhones Anymore that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

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

Introduction

Most of the talk about retrieving data from mobile devices has centered on iPhones and other Apple devices.  And no small reason for that is that most of the discussion on the topic has come from Craig Ball, who is, like many attorneys, an Apple guy.

But, iPhones are not the only mobile devices for which data collection is necessary.  In fact, they’re not even the most popular devices – by far.  Android market share is now bigger than Apple everywhere in the world. Although Apple iOS holds a large share of the smartphone operating systems’ market within the United States, Google Android remains the market leader with a 51.8% share as of September 2019.  Worldwide, Android has a 76% market share with iOS far behind at 22% (Source, IDC Nov 2019)

So, you’re just as likely – even more likely – to need to collect data from Android devices than from Apple devices, especially outside the US.

With that in mind, in this paper, we will take a look at mobile device collection topics, including:

  1. Mobile Collection and Preservation, Courtesy of Craig Ball
  2. Google Vault and the Emphasis of Android Devices
  3. Conclusions

We’ll publish Part 2 – Mobile Collection and Preservation, Courtesy of Craig Ball – next Monday.

So, what do you think?  Are you having to increasingly address issues associated with mobile device discovery?  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.

Court Finds Plaintiffs’ Sanction Request To Be Too Late and Too Little: eDiscovery Case Law

Tom O’Connor and I had a great webcast yesterday regarding Important eDiscovery Case Law Decisions of 2019 and Their Impact on 2020, with plenty of interaction from the audience in the form of great questions and additional information!  So, how do we follow that up?  By continuing to build on this year’s case law collection.  :o)

In Nguyen v. Costco Wholesale Corp., No. 9:19-cv-80393 (S.D. Fla. Jan. 27, 2020), Florida Magistrate Judge William Matthewman denied the plaintiffs’ motion for sanctions for alleged spoliation of a video that the plaintiffs claimed showed an alleged slip-and-fall by plaintiff Chi Nguyen, finding that the defendant “did not have an affirmative duty to preserve the allegedly spoliated video” for a nearly two year period from the date of the fall to the date of the filing of the lawsuit and that the plaintiffs “fail to cite to a shred of evidence in support” in support of the claim that the video showed the slip and fall.

Case Background

In this case, the plaintiffs had previously filed a motion to compel the defendant to produce two photos taken by one of its employees as well as in-store surveillance videos that the defendant had claimed work-product privilege over and listed on its privilege log.  The defendant failed to timely respond to the plaintiffs’ motion, and the Court ordered the defendant to show cause as to why the motion should not be granted, to which the defendant responded that it had inadvertently failed to respond to the plaintiffs’ motion and that its “intent was always” to produce the video and photographs that the plaintiffs requested. Ultimately, the plaintiffs decided their Motion to Compel was moot and the Court denied the plaintiffs’ motion to compel accordingly.

However, the plaintiffs contended that the defendant never produced the “video showing the area” where plaintiff Chi Nguyen allegedly slipped and fell, arguing that the defendant improperly erased the video, resulting in “extreme irreversible prejudice” to the plaintiffs.  The defendant maintained that “there is no such video because no cameras in the store show this area” and that the plaintiffs never made a written request to preserve video information and thus it “had no duty to preserve any videos at all, much less video from a distant camera that did not capture the accident[.]”  The defendant produced affidavits in support of its position, but the plaintiffs produced no such affidavit or other evidence.

Judge’s Ruling

In considering the plaintiffs’ motion, Judge Matthewman observed: “Plaintiff Chi Nguyen originally brought her suit against Defendant in Florida state court on January 17, 2019…Her alleged slip-and-fall occurred on January 25, 2017, nearly two years prior to the filing of the Complaint.”  As a result, he ruled that “Defendant did not have an affirmative duty to preserve the allegedly spoliated video from the date of the fall (January 25, 2017) to the date of the filing of this lawsuit (January 17, 2019), a period of nearly two years after Plaintiff Chi Nguyen’s alleged slip-and-fall. Plaintiffs have provided no evidence that Defendant was given notice prior to the filing of this suit that Plaintiffs intended to file an action against it related to the alleged slip-and-fall. Moreover, merely because Plaintiff Chi Nguyen fell at Defendant’s store, absent additional facts, does not mean that Defendant reasonably anticipated litigation on the date of the alleged fall. No duty to preserve arose until after this lawsuit was served on Defendant. Without a duty to preserve the allegedly spoliated video, Plaintiffs’ motion for sanctions necessarily fails.”

Judge Matthewman also stated in denying the plaintiffs’ motion: “Even assuming Defendant did have a duty to preserve the allegedly spoliated video (which it did not), sanctions would still not be warranted unless the allegedly spoliated ESI was lost because Defendant failed to take reasonable steps to preserve it”, finding that “Defendant did not fail to take reasonable steps to preserve the allegedly spoliated evidence because the video was not ‘unique, relevant evidence that might be useful to’ Plaintiffs.”

So, what do you think?  What should constitute “reasonable anticipation of litigation” in a slip and fall case?  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.