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Preservation

Court Orders Non Party to Preserve Some, But Not All, Information Requested by Plaintiff: eDiscovery Case Law

In Swetlic Chiropractic & Rehabilitation Center, Inc. v. Foot Levelers, Inc., et. al., No. 16-236 (S.D. Ohio, Apr. 27, 2016), Ohio Magistrate Judge Elizabeth A. Preston Deavers ruled that the plaintiff had satisfied its burden to demonstrate a real danger that relevant evidence in a non-party’s possession would be destroyed absent a court order and ordered WestFax, the non-party, “to preserve any transmission report or other documents and ESI that identify fax numbers that received Defendants’ advertising faxes.”  However, noting that the requested scope of the preservation order “appears overly broad”, she permitted WestFax to file objections to the Order within 14 days if unable to extrajudicially resolve any such objection with the plaintiff.

Case Background

In this case, the plaintiff filed suit, alleging that the defendants sent advertisements to the plaintiff and others in violation of the Telephone Consumer Protection Act (“TCPA”).  The plaintiff determined that non-party WestFax could have transmission reports and other electronically stored information (“ESI”) that identify fax numbers that received the defendants’ advertising faxes and asserted a need for this information to establish which recipients are in the proposed class and how many violations of the TCPA occurred.

WestFax indicated to the plaintiff that transmission reports are automatically deleted within sixty to ninety days following each fax broadcast and it would only preserve the evidence with an appropriate Court Order.  As a result, the plaintiff sought an Order compelling non-party WestFax to preserve several categories of ESI related to the defendants, including email, databases, logs, application files and fragments, and all email from third party resources (e.g. Hotmail, Yahoo, Gmail, AOL, etc.), directing it to preserve the information through obtaining an “exact mirror (‘bit stream’) image” with regard to online storage, storage devices, stand-alone computers, and network workstations.

Judge’s Ruling

Noting that “Plaintiff has demonstrated that as a result of WestFax’s alleged retention policies, evidence relevant to this action may be destroyed absent a Court Order”, Judge Deavers concluded that “Plaintiff has satisfied its burden to seek a discovery order at this juncture notwithstanding that the parties have not conducted their Rule 26(f) conference.”  Given WestFax’s alleged refusal to retain information absent a court order, Judge Deavers found that there is a “lack of any other available remedy.”

However, noting that “it appears that Plaintiff failed to serve the subject Motion on WestFax such that it is unlikely that it has had an opportunity to voice any such objection”, expressing “concerns with the breadth of the information Plaintiff is requesting the Court to order WestFax to preserve” and also with the “exact mirror (‘bit stream’) image” method proposed by the plaintiff, Judge Deavers ruled that the plaintiff had “failed to demonstrate that the requested order would not be unduly burdensome and has further failed to establish that mirror imaging is necessary.”  So, Judge Deavers ordered WestFax “to preserve any transmission report or other documents and ESI that identify fax numbers that received Defendants’ advertising faxes”, but permitted WestFax to file objections to the Order within 14 days if unable to extrajudicially resolve any such objection with the plaintiff.

So, what do you think?  How far should courts go to order non-parties to preserve potentially responsive ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Defendant Ordered to Issue Litigation Hold, Respond to Discovery Requests: eDiscovery Case Law

In Bruner v. American Honda Motor Co., No. 1:15-00499-N (S.D.Ala. May 12, 2016), Alabama Magistrate Judge Katherine P. Nelson granted the plaintiffs’ motion to compel response to discovery requests for email, to perform additional searches, and to implement a litigation hold on the email accounts for relevant individuals to the case.

Case Background

In this case stemming from an accident involving a 2007 Honda Civic, the plaintiffs alleged a number of counts, including negligence, wantonness, loss of consortium, and manufacturer’s liability claims.  The parties had a dispute regarding the production of emails in response to the plaintiffs’ requests for production and whether Defendant or its counsel should issue a litigation hold in this action.  Counsel for the defendant claimed that any relevant e-mails were “no longer retained due to the passage of time in accordance with the relevant Document Retention Policy(ies)” and also contended that it had conducted thorough searches of customer complaints and related email in response to the requests for production and found no responsive e-mails, claiming that additional searches or implementation of a litigation hold would be unnecessarily burdensome.

The plaintiffs argued that further searches should be conducted to discover and identify any responsive e-mails, stating that the searches of one particular customer database could not be accurate since it references e-mails which it does not include or attach.  The plaintiffs also argued that the defendant’s retention policy is either “in violation of [Defendant’s] duty to preserve ESI, or [Defendant] is not conducting a thorough search.”  The plaintiffs filed a motion to compel the defendant “to conduct a thorough search of identified custodians with identified search terms and to issue a litigation hold in this case” as well as to direct the defendant to implement a litigation hold so that it is not continuously deleting any relevant e-mails.

Judge’s Ruling

Citing Zubulake v. UBS Warburg, Judge Nelson noted that “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents”.  With regard to this case, she stated:

“The deletion of potentially relevant emails since the instigation of this action is unreasonable considering their potential importance to this litigation. Additionally, the deletion of some responsive emails does not absolve Defendant of its obligation to thoroughly search for still-extant ESI.”

As a result, Judge Nelson concurred with the plaintiffs that a litigation hold is necessary to preserve ESI and ordered the defendant “to serve Plaintiffs with full and adequate responses” to disputed requests for production “utilizing Plaintiffs’ requested search terms” and also ordered the defendant “to implement a litigation hold on the email accounts of any designer, engineer, customer service representative, or other employee who may possess any responsive non-privileged email. Said litigation hold will remain in place at least until the close of discovery.”

So, what do you think?  Should parties be sanctioned for failing to implement a litigation hold?  Please share any comments you might have or if you’d like to know more about a particular topic.

Just a reminder that today is our webinar titled Faster, Cheaper, Better: How Automation is Revolutionizing eDiscovery hosted by the Organization of Legal Professionals (OLP)!  Click here for more information or click here to register! Hope you can make it!

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 Lack of Bad Faith in Denying Sanctions for Defendants’ Deletion of ESI: eDiscovery Case Law

In Martin v. Stoops Buick, Inc. et. al., No. 14-00298 (S.D. Ind., Apr. 25, 2016), Indiana Chief District Judge Richard L. Young ruled that the plaintiff did not carry her burden of proving that the defendants’ deliberately destroyed evidence in bad faith; therefore, he denied her Motion for Sanctions Against Defendants for the Spoliation of Evidence.

Case Background

In this wrongful termination case, the plaintiff worked for the defendants for nearly a year as a part-time employee before being offered full time employment in February 2013. However, two weeks after her full-time work began the defendants terminated the plaintiff’s employment stating that “she [was] not a good fit for [the] position” and replaced her with a new hire.  The plaintiff claimed that immediately after she was terminated, she informed the defendant’s General Manager that she was going to file a discrimination claim against the dealership, she filed an Equal Employment Opportunity Commission (“EEOC”) claim within two weeks and the defendants were notified three days later.  After hearing from both sides, EEOC dismissed the charge in Novermber 2013, after which the Plaintiff filed suit in February 2014.

In December 2015, the plaintiff filed an instant motion for sanctions against the defendants for spoliation of evidence, claiming they destroyed and/or replaced the plaintiff’s work computer, which precluded her from obtaining evidence in support of her claims, and that the plaintiff’s supervisor (Debra Trauner) deleted her e-mail communications with her replacement (Lisa Goodin) that allegedly occurred before she received her resume.

The defendant’s unwritten data retention policy called for the files of terminated employees to be preserved for at least 30 days. Shortly after the plaintiff was terminated, Trauner claimed she asked the IT department to preserve all of Plaintiff’s computer data and, according to Trauner, “they said they would.”  However, she later requested the plaintiff’s email files and work documents and IT said they had been deleted. Trauner also claimed she deleted her sent e-mail as a matter of course “whenever [her] computer would tell [her] that [she] can’t send e-mails anymore”, so the emails with the new employee were no longer available.

Judge’s Ruling

Judge Young, referencing Malibu Media, LLC v. Tashiro, noted that “[t]he court’s determination of whether spoliation occurred requires a two-part inquiry… First, the court must determine whether the defendant was under a duty to preserve evidence; second, it must determine whether the defendant destroyed evidence in bad faith.”

Regarding the duty to preserve, Judge Young stated: “Although Trauner testified to placing a litigation hold on Plaintiff’s work e-mails, there is no evidence in the record to support her statement. There is no evidence of a ticket generated by the IT department regarding the request, and neither Prow, Nolan, Nelson, Jarvis, Stocking, nor Robinson could verify such a request. The court therefore finds Defendants breached their duty to preserve evidence.”

Regarding the determination as to whether the defendant destroyed the evidence in bad faith, Judge Young noted that the defendant “did produce those documents responsive to Plaintiff’s First Request for Production of Documents that were in its possession” and characterized Trautner’s testimony that she deleted the emails with Goodin to make room on the server as “credible”.  He also stated: “Lastly, and most significantly, Plaintiff’s own expert admitted that, after hearing all of the evidence, Stoops did not destroy evidence in bad faith. (Tr. at 110 (“Q: But you did not — it’s your opinion, based upon your background and experience, that what you’ve seen and heard and read and that’s been provided to you, that you do not find bad faith here? A: Right. Correct.”). Plaintiff, therefore, has failed to establish the required element of bad faith.”

As a result, Judge Young ruled that the plaintiff did not carry her burden of proving that the defendants’ deliberately destroyed evidence in bad faith and denied her Motion for Sanctions.

So, what do you think?  Was the court right to deny sanctions due to lack of bad faith?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

At Litigation Time, the Cost of Data Storage May Not Be As Low As You Think: eDiscovery Best Practices

One of my favorite all-time graphics that we’ve posted on the blog (from one of our very first posts) is this ad from the early 1980s for a 10 MB disk drive – for $3,398!  That’s MB (megabytes), not GB (gigabytes) or TB (terabytes).  These days, the cost per GB for data storage is pennies on the dollar, which is a big reason why the total amount of data being captured and stored by industry doubles every 1.2 years.  But, at litigation time, all that data can cost you – big.

When I checked on prices for external hard drives back in 2010 (not network drives, which are still more expensive), prices for a 2 TB external drive at Best Buy were as low as $140 (roughly 7 cents per GB).  Now, they’re as low as $81.99 (roughly 4.1 cents per GB).  And, these days, you can go bigger – a 5 TB drive for as low as $129.99 (roughly 2.6 cents per GB).  I promise that I don’t have a side job at Best Buy and am not trying to sell you hard drives (even from the back of a van).

No wonder organizations are storing more and more data and managing Big Data in organizations has become such a challenge!

Because organizations are storing so much data (and in more diverse places than ever before), information governance within those organizations has become vitally important in keeping that data as manageable as possible.  And, when litigation or regulatory requests hit, the ability to quickly search and cull potentially responsive data is more important than ever.

Back in 2010, I illustrated how each additional GB that has to be reviewed can cost as much as $16,650 (even with fairly inexpensive contract reviewers).  And, that doesn’t even take into consideration the costs to identify, preserve, collect, and produce each additional GB.  Of course, that was before Da Silva Moore and several other cases that ushered in the era of technology assisted review (even though more cases are still not using it than are using it).  Regardless, that statistic illustrates how the cost of data storage may not be as low as you think at litigation time – each GB could cost hundreds or even thousands to manage (even in the era of eDiscovery automation and falling prices for eDiscovery software and services).

Equating the early 1980’s ad above to GB, that equates to about $330,000 per GB!  But, if you go all the way back to 1950, the cost of a 5 MB drive from IBM was $50,000, which equates to about $10 million per GB!  Check out this interactive chart of hard drive prices from 1950-2010, courtesy of That Data Dude (yes, that really is the name of the site) where you can click on different years and see how the price per GB has dropped over the years.  It’s way cool!

So, what do you think?  Do you track GB metrics for your cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Failure to Extend Preservation Hold to Headquarters Does Not Lead To Adverse Inference Sanction: eDiscovery Case Law

In Botey v. Green, et. al., No. 12-01520 (M.D. Pa., April 4, 2016), Pennsylvania District Judge Robert D. Mariani denied the plaintiff’s request for an adverse inference sanction for the defendants’ failure to preserve trucking logs related to an accident between the plaintiff and a truck driver working for the defendant’s company, but did agree not to allow the defendants to prove the contents of the destroyed documents by other means or argue their contents in dispositive motions or at trial.

Case Background

In this lawsuit arising out of a traffic accident between the plaintiff and a truck driver (Robert Green) working for the defendant’s company in May 2011 resulting in serious injury to the plaintiff, the parties originally planned to take the driver’s deposition during the normal discovery period.  However, in February 2014, it was determined that the truck driver suffered from dementia and was therefore unable to be deposed.  As a result, the plaintiff sought expanded discovery from the defendants thirty days’ worth of the truck driver’s trip documents and logs that the trucking company maintains for each of its truck drivers, whereas the defendants argued that the plaintiff was only entitled to logs going back 34 hours before the accident.  After telephone arguments, the Court compromised and ordered the defendants to provide fifteen days of logs.

However, the defendants only produced four additional days of logs, not the full fifteen that the Court ordered.  The plaintiff then filed a Motion for Sanctions, which requested “that an adverse inference jury instruction be read against Defendants at the time of trial” as well as “an Order precluding Defendants from arguing in dispositive motions that Plaintiff lacks evidence to prove his corporate negligence claims against Defendants FFE and Conwell based on the documents destroyed.”

The defendants’ trucking logs were administered and maintained by a third party vendor, which only stored the electronic data from the trucks for a period of six months before automatically deleting them. The plaintiff sent litigation hold letters as early as October 2011, but sent them to a local office in Norman, Oklahoma rather than to the defendants’ corporate office in Dallas, Texas and the defendants acknowledged that the letters were never forwarded to the corporate office.

Judge’s Ruling

Judge Mariani noted that “[u]nder Pennsylvania law, to determine the penalty for a spoliation of evidence claim, Plaintiff must show (1) the degree of fault of Defendant in altering or destroying the evidence (2) the degree of prejudice Plaintiff has suffered, and (3) the availability of a lesser sanction that will protect Defendant’s rights and deter future similar conduct.”

Having already found that the defendants were under a legal duty to preserve the logs, Judge Mariani ruled that “Plaintiff has not shown that he is entitled to the ‘adverse inference’ sanction”, noting that “Plaintiff does not explain what ‘adverse inference’ he wants.”  Continuing, Judge Mariani stated that “It is too great a leap to conclude that, if the destroyed records were preserved, they would have shown such evidence of a loss by Green of his mental faculties that Defendants would have been placed on notice that he was suffering from dementia and was likely to cause accidents and therefore advance Plaintiff’s negligence claims against FFE and Conwell.”

As a result, Judge Mariani denied the plaintiff’s request for an adverse inference sanction, noting that failure to preserve the logs “appears to be mainly carelessness in failing to preserve documents from destruction in the ordinary course of business”.  However, Judge Mariani also noted that “while the Court will not grant Plaintiff’s request for an adverse inference, it is only logical and fair that Defendants will not be allowed to rely on the missing records in support of any dispositive motions. This is for obvious reasons: Defendants cannot claim that information in records that was destroyed would exonerate them and expect the Court to permit such an argument.”

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

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

Defendant Sanctioned for Loss of Emails During Provider Switch, But No Sanction For Wiped Hard Drive: eDiscovery Case Law

In Core Laboratories LP v. Spectrum Tracer Services, LLC et. al., No. 11-1157 (W.D. Okla. Mar. 7, 2016), Oklahoma District Judge Vicki Miles-LaGrange granted the plaintiff’s motion for sanctions for emails that were not preserved during an email provider switch via an adverse inference instruction, but denied the plaintiff’s motion for sanctions for deleting files and for wiping the computer of one of its employees.

Case Background

The plaintiff contended that the defendants had a duty to preserve evidence in the wake of and after this litigation commenced, and identified three instances where it contended that defendants intentionally destroyed relevant evidence in this matter, including (1) lost emails relating to correspondence between the defendant and a third party (2) deleting computer files from one defendant employee’s hard drive; and (3) wiping files from another employee’s computer. The defendants contended that the plaintiff had not identified any relevant evidence that has been lost nor could it identify any prejudice it suffered by defendants’ actions.

Judge’s Ruling

Judge Miles-LaGrange began by looking at the recently amended FRCP 37, noting that, in Rule 37(e), spoliation sanctions are only proper when the accused party had a duty to preserve because it knew or should have known that litigation was imminent and if the adverse party was prejudiced.

With regard to the loss of emails between the defendant and a third party, Judge Miles-LaGrange ruled that “Core has shown it was prejudiced by not having access to Spectrum’s emails prior to June 2011. Specifically, the Court finds that this litigation was initiated on March 11, 2011, and Brown testified that relatively quickly after this lawsuit was filed, Spectrum took steps to change its email service provider to ensure every Spectrum email was captured to comply with the requirements of this lawsuit. While Brown testified that Spectrum’s previous email service provider did not have the capability to capture archive emails, the Court finds it was not unreasonable for Spectrum to have taken steps to ensure that any emails prior to switching over to its new email service provider were saved. The Court infers that because all emails prior to June 2011 were lost, emails regarding the formation of Spectrum and the manufacturing of its tracing systems would have been lost too. Since Faurot has confirmed that TPM used one of Core’s pumps as a prototype to produce Spectrum’s pumps, the Court finds that the lack of information available because of Spectrum’s email loss is prejudicial to Core.”

Judge Miles-LaGrange determined that an appropriate sanction would be an adverse inference jury instruction presuming any potential communications that were lost due to the defendant changing its email service provider would have been unfavorable to the defendant.

With regard to the deleted files from one employee’s computer, Judge Miles-LaGrange found “that defendants admitted that Morrison’s personal files were deleted from the hard drive and, further, the hard drive was turned over to Core and has been the subject of an ongoing forensic analysis, during this litigation, to recover all of Core’s proprietary software from the hard drive”.  With regard to the wiped hard drive of another employee, because the defendant testified that anything needed to be kept from his computer was exported to an external hard drive prior to the computer being wiped, Judge Miles LaGrange found the plaintiff suffered no prejudice as a result of this action ether and denied the plaintiff’s motion for sanctions for the deleted files and wiped drive.

So, what do you think?  Should the defendants have been sanctioned for the deleted files and the wiped drive?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Beep, Beep! Terminating Sanctions against Defendant for Spoliation Affirmed on Appeal: eDiscovery Case Law

As Wile E. Coyote has learned, you don’t want to mess with the Roadrunner.  Especially if you’ve been found to have willfully spoliated data…  :o)

In Roadrunner Transportation Services, Inc. v. Tarwater, Nos. 15-55448 and 14-55529 (9th Cir., Mar. 18, 2016), the Ninth Circuit affirmed the district court’s entry of default judgment and award of attorneys’ fees in favor of the plaintiff, ruling that the district court did not abuse its discretion by entering default judgment as a sanction for the defendant’s deletion of data from his laptop computers .  The Ninth Circuit also affirmed the district court’s award of $325,000 in attorneys’ fees to the plaintiff and also affirmed the lower court ruling to limit the plaintiff’s compensatory damages to the four customers specifically identified in the First Amended Complaint.

In considering the defendant’s appeal of the district court’s entry of default judgment and award of attorneys’ fees in favor of his former employer and the plaintiff’s cross-appeal of the district court’s compensatory damages award, the Ninth Circuit ruled, as follows:

“1. The district court did not abuse its discretion by entering default judgment as a sanction for Tarwater’s deletion of data from his laptop computers…There was ample evidence that Tarwater deleted emails and files on his laptops after receiving multiple preservation demands from Roadrunner, and even after the court explicitly ordered Tarwater to preserve “all data” on his electronic devices. In addition to Tarwater’s own admissions, a third-party computer expert concluded that files on one of Tarwater’s devices had been deleted and overwritten during the litigation, and that the deletions likely “bypasse[d] the [computer’s] Recycle Bin” through a user-initiated process. In light of the evidence of spoliation, and the nature of Roadrunner’s claims, the district court did not clearly err in finding that Tarwater willfully destroyed the data, that Roadrunner had been deprived of its “primary evidence of Tarwater’s alleged misappropriation and related misconduct,” and that a less drastic sanction could not have adequately redressed the prejudice to Roadrunner.”

“2. The district court did not abuse its discretion by awarding Roadrunner $325,000 in attorneys’ fees…The court carefully considered the billing entries and reasonableness of the hourly rates for Roadrunner’s attorneys and reduced the award to reflect an appropriate level of staffing for the case. The district court also properly accounted for the degree of success achieved by Roadrunner, as well as the public’s interest in protecting trade secrets.”

“3. The district court properly limited Roadrunner’s compensatory damages to the four customers specifically identified in the First Amended Complaint.”

“AFFIRMED.”

So, what do you think?  Did the defendant deserve a terminating sanction?  Please share any comments you might have or if you’d like to know more about a particular topic.

We’re just one week away from the pre-conference seminars at ACEDS!  For the first time, ACEDS is offering a number of pre-conference events focused on some of the most important issues and trends in eDiscovery. These include a cybersecurity seminar addressing the recent data breaches at major law firms, a networking forum hosted by Women in E-Discovery, and the Law Student Blogger/Social Invitational pre-conference seminar with Ari Kaplan, Rob Robinson, Robin Thompson and me!  If you already have a blog or are interested in starting a blog, join us and learn about the benefits of blogging, how to get started, establishing your blogging workflow, avoiding liability and leveraging social media for professional and personal benefit.  Hope to see you in New York on Monday!

Image © Warner Bros.

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.

Even a “Luddite” Can Learn the Ins and Outs of Data Backups with this Guide: eDiscovery Best Practices

You have to love an instructional guide that begins with a picture of Milton Waddams (the sad sack employee obsessing over his red stapler in the movie Office Space) and ends with a nice consolidated list of ten practice tips for backups in discovery.

Leave it to Craig Ball to provide that and more in the Luddite Lawyer’s Guide to Backup Systems, which Craig introduces in his Ball in Your Court blog here.  As Craig notes in his blog, this guide is an update from a primer that he wrote back in 2009 for the Georgetown E-Discovery Institute.  He has updated it to reflect the state-of-art in backup techniques and media and also added some “nifty” new stuff and graphics to illustrate concepts such as the difference between a differential and an incremental backup.  Craig even puts a “Jargon Watch” on the first page to list the terms he will define during the course of the guide.

Within this 20 page guide, Craig covers topics such as the Good and Bad of Backups, the differences between Duplication, Replication and Backup, the Major Elements of Backup Systems and the types of Backup Media and characteristics of each.  Craig illustrates how restoration to tape (despite popular opinion to the contrary) could actually be the most cost-effective way of recovering ESI in a case.  And, Craig discusses the emergence of the use of the Cloud for backups (which should come as no surprise to many of you).  He concludes with his Ten Practice Tips for Backups in Civil Discovery, which is a concise, one-page reference guide to keep handy when considering backups as part of your information governance and discovery processes.

Whether you’re a Luddite lawyer or one who is more apt to embrace technology, this guide is sure to provide an essential understanding of how backups are created and used and how they can be used during the discovery process.  Backups may be the Milton Waddams of the eDiscovery world, but they’re still important – remember that, at the end of the movie, Milton was the one relaxing on the beach with all of the money.  :o)

So, what do you think?  How do backups affect your eDiscovery process?   Please share any comments you might have or if you’d like to know more about a particular topic.

Image © Twentieth Century Fox

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.

Defendants Claim of Lightning Strike and Power Surge Doesn’t Save Them from Sanctions: eDiscovery Case Law

In a recent post in Craig Ball’s excellent blog, Ball in your Court, Craig stated that “you are more likely to be hit by lightning than to be sanctioned for non-preservation of ESI”.  So, if you claim that your devices are hit by lightning, causing your relevant ESI to be lost, does that make it more or less likely that you will be sanctioned?  :o)

In InternMatch, Inc. v. Nxtbigthing, LLC, et. al., No. 14-05438 (N.D. Cali., Feb. 8, 2016), California District Judge Jon S. Tigar, finding that the defendants “consciously disregarded their obligations to preserve relevant evidence” when they discarded various electronic devices after experiencing an alleged power surge without checking to see if they could recover any files from them, granting an adverse inference instruction sanction and plaintiff’s attorneys’ fees.

Case Background

In this trademark infringement case, the plaintiff requested copies of any documents, including electronic documents, relating to the defendants’ defense that it had continually and extensively used the disputed trademark. The defendants responded (and the owner of the defendant company (Chad Batterman) stated in his deposition) that a lightning strike in 2011 and a power surge in April 2015 had destroyed responsive documents, including corporate records central to the parties’ dispute and marketing materials that allegedly established prior use of the trademark.

in November 2015, the plaintiff filed a motion for terminating sanctions, accusing Defendants of intentionally destroying the electronic versions of the documents.

Judge’s Ruling

Using the newly amended FRCP Rule 37(e) as a guideline, Judge Tigar also considered the five factors identified by the Ninth Circuit in determining whether the terminating sanction is justified:

(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.

With regard to the defendant’s duty to preserve and whether that duty was upheld, Judge Tigar found “that at least by January 2015, Defendants knew about the present action and were under a duty to preserve relevant evidence.  The evidence shows that Defendants violated this duty…Prior to discarding the desktop, Batterman did not make any effort to determine whether the hard drive on the desktop was salvageable or any data could be recovered from it…As a result, the parties can only access the few existing paper copies of the relevant documents, rather than the electronic files, which would include valuable information such as the creation and modification history of the files.”

Continuing, Judge Tigar stated: “The Court finds that at the very least, Defendants consciously disregarded their obligations to preserve relevant evidence. There is no evidence that Defendants took any steps to preserve relevant information after the litigation began…After the alleged power surge, Defendants failed to identify whether data from the electronic devices might be recoverable, and instead simply discarded the devices.

The Court also finds Defendants’ evidence that the surge occurred in the first place to be unbelievable. Not only is the alleged chronology of events highly improbable, but Defendants’ story is filled with inconsistencies. The Court does not know what actually happened to the missing evidence, if it ever existed, but concludes that Defendants have failed to show that it was lost in a power surge.”

While finding that sanctions were warranted, Judge Tigar concluded “that sanctions short of entry of default are appropriate” and granted the plaintiff’s request for an adverse inference instruction sanction, as well as attorneys’ fees associated with bringing the Motion for Terminating Sanctions.

So, what do you think?  Should the termination sanction have been awarded?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Craig Ball’s “Alexa-lent” Example of How the Internet of Things is Affecting Our Lives: eDiscovery Trends

I probably shouldn’t be writing about this as it will give my wife Paige another reason to say that we should get one of these.  Nonetheless, Craig Ball’s latest blog post illustrates how much data can be, and is being, captured these days in our everyday life.  Now, if we could just get to that data when we need it for legal purposes.

In Craig’s blog, Ball in your Court, his latest post (“Alexa. Preserve ESI.”) discusses how many cool things the Amazon Echo (with its “Alexa” voice command service) can do.  Sounding like he has gotten a little too up close and personal with the device, Craig notes that:

“Alexa streams music, and news updates.  Checks the weather and traffic.  Orders pizzas and Ubers.  Keeps up with the grocery and to do lists.  Tells jokes.  Turns on the lights.  Adjusts the temperature.  Answers questions.  Does math. Wakes me up.  Reminds me of appointments.  She also orders stuff from Amazon (big surprise there).”

Sounds pretty good.  Hopefully, my wife has stopped reading by this point.

Have you ever seen the movie Minority Report where Tom Cruise walks into his apartment and issues voice commands to turn on the lights and music?  Those days are here.

Anyway, Craig notes that, using the Alexa app on his phone or computer, he can view a list of every interaction since Alexa first came into his life, and listen to each recording of the instruction, including background sounds (even when his friends add heroin and bunny slippers to his shopping list).  Craig notes that “Never in the course of human history have we had so much precise, probative and objective evidence about human thinking and behavior.”

However, as he also notes, “what they don’t do is make it easy to preserve and collect their digital archives when a legal duty arises.  Too many apps and social networking sites fail to offer a reasonable means by which to lock down or retrieve the extensive, detailed records they hold.”  Most of them only provide an item-by-item (or screenshot by screenshot) mechanism for sifting through the data.

To paraphrase a Seinfeld analogy, they know how to take the reservation, they just don’t know how to hold the reservation (OK, it’s not completely relevant, but it’s funny).

In a call to action, Craig says that both “the user communities and the legal community need to speak out on this.  Users need an effective, self-directed means to preserve and collect their own data when legal and regulatory duties require it.”  I agree.  Some, like Google and Twitter, provide excellent mechanisms for getting to the data, but most don’t.

As Wooderson says in the movie Dazed and Confused, “it’d be a lot cooler if you did”.

So, what do you think?  Will the “Internet of Things” age eventually include a self-export feature?  Please share any comments you might have or if you’d like to know more about a particular topic.

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