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Jason R. Baron of Drinker Biddle & Reath LLP: eDiscovery Trends

This is the third of the 2016 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year to get their observations regarding trends at the show and generally within the eDiscovery industry.  Unlike previous years, some of the questions posed to each thought leader were tailored to their position in the industry, so we have dispensed with the standard questions we normally ask all thought leaders.

Today’s thought leader is Jason R. Baron.  An internationally recognized speaker and author on the preservation of electronic documents, Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice and also a member of the leadership team for the Information Governance Initiative.  Jason previously served as Director of Litigation for the U.S. National Archives and Records Administration (NARA) and as trial lawyer and senior counsel at the Department of Justice.  He was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.  He also founded the international DESI (Discovery of Electronically Stored Information) workshop series, bringing together lawyers and academics to discuss cutting-edge issues in eDiscovery.

What are your general observations about LTNY this year and how it fits into emerging trends?

It’s clear to me that there has been a maturing of the market for the kind of analytics software that some of us have been evangelizing about in the eDiscovery space for some time.  This year, it was noticeable that there weren’t 27 sessions devoted to technology assisted review in e-discovery cases!  However, in place of that narrower focus, there were any number of sessions on analytics and applying analytics to a broader segment of the legal space, which I applaud.

Also, I think there was an acknowledgement that, from the perspective of Information Governance, there is an analytics play to be had.  With bigger and bigger data sets, companies need to face the fact that both employees and customers generate huge amounts of data and they need to make sure that they understand and have visibility into that data.  So, the tools that evolved for purposes of eDiscovery are perfectly suitable – with tweaks – to cover a variety of legal purposes, and we’re seeing that play out at LegalTech.

At LTNY, you were one of the panelists on the Thursday keynote addressing issues such as private servers, bring-your-own-device (BYOD) and other organization challenges for managing data by individual employees.  What do organizations, such as government entities and corporations, need to do manage personal data more effectively?

Well, I’m glad you asked me that.  The session that I had the privilege of speaking on (with Judge Scheindlin and Edward McMahon as fellow panelists and Professor Dan Capra moderating) was all about what I call “shadow IT,” which is a phenomenon that is closely related to but distinct from BYOD.   In the past decade or so, we all have been empowered to simply go to the Internet to use whatever variety of cool apps that are out there, like Google Docs and Dropbox, to facilitate communications and doing work and “parking” documents.  We go out and communicate routinely on Gmail and other forms of commercial services.  All of these activities, to the extent that they involve communications that relate to business or the work of governments, are what I consider to be “shadow IT” in nature because they are not controlled by a traditional IT department in a corporation or agency.

So, maybe a decade ago, if there was a Rule 34 request, you were pretty much assured that all of the relevant material could be gathered by a state-of-the-art IT custodian performing a collection effort against individual accounts on an official system.  That’s no longer absolutely the case.  Today, you need to ask follow-up questions as to where individuals are parking their documents and where are they communicating outside the “official” channel for doing so.

In government, there are very well known, long standing rules for what constitutes a Federal record, including email.  There is an expectation on the part of the public – and there should be an expectation on the part of government officials — that Freedom of Information Act (FOIA) requests for records created about government business will be made available. (Indeed, at least some of those records will be preserved as permanent records in the National Archives of the United States.)  So, it is incumbent to make sure that one follows the rules — and the rules for government are different than what they are for the private sector.  A clear statute in place since 2014 says that anytime that you’re communicating about government business on a private commercial network, you need to either “cc” or forward that message within twenty days to an official record keeping system.  This isn’t the place to get into what regulations were prior to 2014 and how that plays out in terms of the political realm, but our panel did cover the general topic of the responsibility of the officials to make sure that their communications about government business are, in fact, captured in an official system somewhere.

Also, for some time, I have been a very big advocate of email archiving and capture technologies generally, so that we don’t lose history and don’t lose a broad swath of government records that are otherwise not going to be captured if you simply leave it to individuals themselves to take steps to preserve. 

The problem of shadow IT is one that is equally of concern in the private sector because high level corporate officials sometimes, in various verticals, are governed by strict email archiving requirements (e.g.,SEC and FINRA rules).  So senior people need to also be aware that, if they’re communicating about cover topics outside of the usual channels, they need to take additional steps to make sure that those are properly archived.

These issues are only emerging now and it’s probably only going to get “worse”!  In my view, the issues are going to be more complex in the future with more apps, more platforms, more devices and more opportunities for “end runs” around the traditional IT department.

In the case Nuvasive v. Madsen Medical, the Court recently vacated an adverse inference instruction sanction previously applied against the plaintiff because of the amendment to Rule 37(e).  Do you see that as a trend for other cases and do you expect that other parties that have been sanctioned will file motions to have their sanctions re-considered?

There are some subtle provisions as to when courts will or will not apply the new rules to existing cases.  But, beyond that, I have been watching with great interest the number of decisions that have been handed down that are applying the new provisions of Rule 37, and doing so in a way that suggests that courts will continue to be quite active in monitoring what is happening in discovery — imposing severe sanctions where appropriate and, when there isn’t the requisite level of intent, applying some sort of curative measures otherwise.  So, I think there may have been a greater level of judicial activity than was anticipated in the immediate period since December 1 when the rules changed.  It seems clear to most observers in the space that we’re going to have dozens and dozens of decisions in 2016 that apply the new rules, and we will get to see the patterns emerging pretty quickly.

What are you working on that you’d like our readers to know about?

I think the exciting work of the Information Governance Initiative (IGI) continues to push smart conversations in the space about how corporations can get a handle on their data.  We had a very successful IGI summit, known as the Chief Information Governance Officers (CIGO) summit, in Chicago last year.  We’re going to have the second CIGO summit in May of this year again in Chicago and we’re looking forward to that.  We also have any number of activities that we’re planning to do in terms of retreats, dinners and boot camps, etc. I think IG is still an emerging discipline that should be of great interest to many corporate actors who don’t have a good handle on their existing workflows, policies and programs about data – whether it’s data breach or data reduction or data archiving or data analytics.  I feel very privileged to be part of a group of individuals at the IGI that are really doing some serious thinking about these types of topics.

I must say I was surprised by Monica Bay at LegalTech, who pulled me in at the last moment to be a judge at the second “Shark Tank” session held there —  where I felt a little like being on “America’s Got Talent” as one of three judges in the room looking at the individual entrepreneurs who were giving presentations.  But, as the session progressed (and as recorded by David Horrigan, who was tweeting the session in live stream fashion) it seemed very clear to me that maybe it’s time for me to retire!  I say so because of the profusion of disruptive technologies in the space, whether it has to do with smart contracts or dialing up lawyers over the web, it all heavily suggests that all of our current business models are going to be disrupted in due course and maybe very soon!  There are simply a lot of exciting technologies in the space for which the CodeX people are fostering a platform.  In the end I confess to being quite happy that Monica pulled me in, and I would urge your readership to pay attention to what CodeX is doing.  I believe there is a conference coming up (CodeX FutureLaw 2016) on May 20, which is focusing on how technology is changing the landscape of the legal profession and the impact of those changes.

Thanks, Jason, for participating in the interview!

And to the readers, as always, 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

DOJ and FBI Respond to Apple’s Letter Regarding Breaking Encryption of San Bernardino Shooter’s iPhone: eDiscovery Trends

It probably comes as no surprise that the government didn’t take Apple’s opposition to the Federal order to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters lying down.

According to the ABA Journal, on Friday, federal prosecutors filed a motion to compel Apple to unlock the killer’s iPhone.  In its motion, the Department of Justice said that Apple is “not above the law”.  “Apple’s current refusal to comply with the court order’s order, despite the technical feasibility of doing so, instead appears to be based on its concern for its business model and public brand marketing strategy,” the DOJ wrote in its filing, stating that Apple shouldn’t be allowed to “design and market its products to allow technology, rather than the law, to control access to data”.

Then, on Sunday, the FBI also responded to Apple’s opposition.  According to NBC News, FBI Director James Comey said forcing Apple to help unlock the iPhone of one of the San Bernardino shooters is no big deal.  “We don’t want to break anyone’s encryption or set a master key loose on the land,” Comey said in a statement Sunday night, insisting that vital decisions involving safety from terrorists shouldn’t be left in the hands of “corporations that sell stuff for a living.”

In the meantime, everyone from Google Chief Executive Sundar Pichai to Donald Trump is weighing in on whether Apple should help unlock the iPhone for the investigation.  And, Apple is claiming that had the passcode to Syed Farook’s iPhone not been reset hours after the shooting (at the consent of the FBI), the company would have been able to initiate a backup of the phone’s data to its associated iCloud account in order to retrieve its contents.  And, PCWorld is reporting that if San Bernardino County had been using a Mobile Device Management (MDM) service on its employees’ devices, they “would have been able to clear the device’s passcode in a matter of seconds” and the whole issue would have been moot.

So, what do you think?  Do any of the recent developments and statements change your opinion about whether Apple should or should not help the FBI break into the iPhone?  Please share any comments you might have with us or let us know 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.

Apple in Court Battle Over Access to San Bernardino Shooter’s iPhone: eDiscovery Trends

In a case that pits national security vs. privacy concerns, a federal judge on Tuesday ordered Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters, a court order that Apple has vowed to fight, accusing the federal government of an “overreach” that could potentially breach the privacy of millions of customers.

According to NBC News, in a 40-page filing, the U.S. Attorney’s Office in Los Angeles argued that it needed Apple to help it find the password and access “relevant, critical … data” on the locked cellphone of Syed Farook, who with his wife Tashfeen Malik murdered 14 people in San Bernardino, California on December 2.

The judge ruled that Apple had to provide “reasonable technical assistance” (that it had previously “declined to provide voluntarily”) to the government in recovering data from Farook’s iPhone 5c, including bypassing the auto-erase function and allowing investigators to submit an unlimited number of passwords in their attempts to unlock the phone. Apple was given five days to respond to the court if it believed that compliance would be “unreasonably burdensome.”

Apple CEO Tim Cook published an open letter late Tuesday, pledging to fight a judge’s ruling that it should give FBI investigators access to encrypted data on the device.

“We have great respect for the professionals at the FBI, and we believe their intentions are good. Up to this point, we have done everything that is both within our power and within the law to help them. But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone”, Cook wrote.  “The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers. We oppose this order, which has implications far beyond the legal case at hand.”

Stating that creation of a tool to unlock the iPhone would be “the equivalent of a master key, capable of opening hundreds of millions of locks – from restaurants and banks to stores and homes”, Cook wrote that “[n]o reasonable person would find that acceptable.”  “Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government.”

Yesterday, the Today show covered the dispute as its top story – even before covering the election and Donald Trump (imagine that!).  A link to the video and more on the story is available on the NBC News site here.  The experts interviewed on the show expected to court battle to continue for some time.

So, what do you think?  Does Apple have legitimate concerns or is it their duty to assist the government and create a tool to unlock the iPhone?  Please share any comments you might have with us or let us know 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.

Europe and US Agree to Replace Safe Harbor with a Shield: eDiscovery Trends

While many of us were at LegalTech® New York 2016 last week, an important new framework for transatlantic data flows was agreed upon – the EU-US Privacy Shield.

As announced last Tuesday, the new framework is intended to protect the fundamental rights of Europeans where their data is transferred to the United States and ensure legal certainty for businesses.

According to the European Commission, the EU-US Privacy Shield reflects the requirements set out by the European Court of Justice (ECJ) in its ruling in the Schrems case last October 2015 (covered by us here), which declared the old Safe Harbor framework invalid. The new arrangement will provide stronger obligations on companies in the U.S. to protect the personal data of Europeans and stronger monitoring and enforcement by the U.S. Department of Commerce and Federal Trade Commission (FTC), including through increased cooperation with European Data Protection Authorities. The new arrangement includes commitments by the U.S. that possibilities under U.S. law for public authorities to access personal data transferred under the new arrangement will be subject to clear conditions, limitations and oversight, preventing generalized access. Europeans will have the possibility to raise any inquiry or complaint in this context with a dedicated new Ombudsperson.

The new agreement, which has yet to be published (and is apparently still “some” weeks out, according to an article in TechCrunch) will include provisions for “strong obligations on companies handling Europeans’ personal data and robust enforcement”, “clear safeguards and transparency obligations on U.S. government access” and “effective protection of EU citizens’ rights with several redress possibilities”.  Next steps include preparation of a draft “adequacy decision” in the coming weeks, which could then be adopted by the College of Commissioners after obtaining the advice of the Article 29 Working Party and after consulting a committee composed of representatives of the Member States. In the meantime, the U.S. side will make the necessary preparations to put in place the new framework, monitoring mechanisms and new Ombudsman.

In the TechCrunch article, Schrems, whose legal action against Facebook ultimately brought down the original Safe Harbor, expressed skepticism the deal goes far enough to stand the test of another legal challenge at the ECJ, noting that the “Court has explicitly held, that any generalized access to such data violates the fundamental rights of EU citizens”.

So, what do you think?  Will the new “Privacy Shield” hold?  Or is it too soon to tell?  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.

Would eDiscovery Have Identified the Correct Murderer in “Making a Murderer”?: eDiscovery Best Practices

The recently released Netflix documentary Making a Murderer has made a huge splash with hundreds of thousands of viewers (including me) having watched the 10 part documentary that was released last month. Debate has raged over whether Steven Avery and his nephew, Brendan Dassey, were wrongly convicted of murdering photographer Teresa Halbach.  Interestingly enough, some possibly deleted electronic evidence might have helped answer that question.

In an article on ACEDS (Making a Murderer: The Missing Computer Forensics Evidence), the author (Jason Krause) discusses the fact that there voicemail messages on Halbach’s phone that allegedly disappeared.  Krause discusses the information presented in the documentary regarding the voicemail messages, as follows:

“Halbach’s family reported her missing in early November 2005 after finding that they called her cellphone and received a recorded message saying the voicemail box was full. According to her family, it was not like Halbach to not check her messages and decided to alert the police that she may be missing.

However, Teresa’s ex-boyfriend Ryan Hillegas testified that he listened to her voicemails after breaking into her inbox in an attempt to learn more about where she had last been. “I had a feeling that I might know her voicemail password,” he said in the episode, in order to explain how he retrieved the voice mails. However, he claimed that he did not delete any messages.  [It was actually her brother, Mike Halbach, who stated that he had listened to her messages, though Hillegas indicated that he had accessed her phone records after also guessing Teresa’s password.]

However, the only expert called to testify in this matter was Tony Zimmerman, a network engineer with Cingular Wireless, Halbach’s phone provider. He testified that calls and messages that the phone had received, should not have filled up the full capacity of the mailbox. Avery’s lawyers speculated that someone had erased potentially incriminating messages before Halbach was reported missing.

Unfortunately, Zimmerman was not a trained computer forensic examiner and his testimony did not reflect that any investigation more rigorous than looking at Halbach’s call log.”

Krause’s article quotes David Greetham, Vice President of eDiscovery Operations with Ricoh Americas Corporation, who recalled that “as long ago as 2001 we were recovering deleted text messages from a defendant accused of drug dealing”, but also noted that “law enforcement often has budget restrictions on training and resources”, which could limit the ability to investigate such leads (back in 2005 especially).  Of course, if you’re like many viewers who believe that the Manitowoc sheriff’s department had a vested interest in seeing Avery arrested for the crime (particularly since he had filed a $36 million lawsuit against the department for his wrongful conviction in a 1985 rape case), you may think that they were less than highly motivated to pursue this lead.

Regardless of whether or not you believe that Avery and Dassey were wrongfully convicted (and, apparently, several instances of incriminating evidence regarding their potential involvement were not covered in the documentary), the question remains: Were there voicemail messages that were deleted and could they have affected the outcome of the case?  If there had been a trained computer forensic examiner on the case back then, perhaps there would have been some additional information uncovered that either pointed to a different suspect or added to the evidence that implicated Avery.  Over ten years have passed since the murder took place, so we will probably never know.

So, what do you think?  Do you find the lack of investigation of the voice mail messages disconcerting?  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.

2015 eDiscovery Case Law Year in Review, Part 3

As we noted yesterday and Tuesday, eDiscovery Daily published 89 posts related to eDiscovery case decisions and activities over the past year, covering 72 unique cases!  Yesterday, we looked back at cases related to disputes about discovery, eDiscovery cost reimbursement and issues related to privilege and confidentiality assertions.  Today, let’s take a look back at cases related to cooperation issues, social media and mobile phone discovery, technology assisted review and the first part of the cases relating to sanctions and spoliation.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

COOPERATION

Why can’t we all just get along?  There were several instances where parties couldn’t agree and had to kick issues up to the court for resolution, here are four such cases:

Judge Shows Her Disgust via “Order on One Millionth Discovery Dispute”: In Herron v. Fannie Mae, et al., DC District Judge Rosemary M. Collyer issued an order titled “Order on One Millionth Discovery Dispute” where she decided that “[c]ontrary to its usual practice, the Court will rule immediately, in writing” on the latest discovery disputes between the plaintiff and defendant.

Court’s “New and Simpler Approach to Discovery” Identifies Search Terms for Plaintiff to Use: In Armstrong Pump, Inc. v. Hartman, New York Magistrate Judge Hugh B. Scott granted in part the defendant’s motion to compel discovery responses and fashioned a “new and simpler approach” to discovery, identifying thirteen search terms/phrases for the plaintiff to use when searching its document collection.

Court Agrees to Allow Defendant to Use Search Terms to Identify ESI to Preserve: In You v. Japan, California District Judge William Alsup granted the defendant’s motion to limit preservation of articles to those that contain one of several relevant search terms, as long as the defendant’s proposal was amended to include one additional term requested by the plaintiffs.

Court Orders Defendant to Supplement Data Used for Statistical Sampling: In United States ex rel Guardiola v. Renown Health, Nevada Magistrate Judge Valerie P. Cooke agreed with the relator’s contention that the data used to finalize the relator’s proposed statistical sampling plan was incomplete due to how data was identified within one of two billing systems used by the defendant. As a result, she ordered the defendant to “EXPEDITIOUSLY PRODUCE” the additional data (and, yes, she used all caps).

SOCIAL MEDIA

Requests for social media data in litigation continue, so here are three cases related to requests for social media data:

Court Rejects Defendants Motion Seeking Limitless Access to Plaintiff’s Facebook Account: In the class action In re Milo’s Kitchen Dog Treats Consolidated Cases, Pennsylvania Magistrate Judge Maureen P. Kelly denied the defendants’ Motion to Compel Unredacted Facebook Data File and Production of Username and Password, disagreeing that the discovery of one highly relevant Facebook entry justified the defendants to be “somehow entitled to limitless access to her Facebook account”. Judge Kelly did order the plaintiff to produce previously produced redacted Facebook pages to the Court unredacted so that an in camera inspection could be conducted to confirm that the redacted information was truly privileged.

Plaintiff’s Motion to Quash Subpoena of Text Messages Granted by Court: In Burdette v. Panola County, Mississippi Magistrate Judge S. Allan Alexander granted the plaintiff’s Motion to Quash Subpoena where the defendant subpoenaed the plaintiff’s text messages and call log records from his mobile provider.

When Claiming Workplace Injury, Facebook Posts Aren’t Handy, Man: In the case In Newill v. Campbell Transp. Co., Pennsylvania Senior District Judge Terrence F. McVerry ruled on the plaintiff’s motion in limine on miscellaneous matters by allowing the defendant to introduce Facebook posts into evidence that related to the plaintiff’s physical capabilities, but not those that related to his employability.

TECHNOLOGY ASSISTED REVIEW

Believe it or not, we only covered one technology assisted review case last year, at least officially.  Though, we did at least cover it twice.  Here is the case:

Judge Peck Wades Back into the TAR Pits with ‘Da Silva Moore Revisited’: In Rio Tinto Plc v. Vale S.A., New York Magistrate Judge Andrew J. Peck approved the proposed protocol for technology assisted review (TAR) presented by the parties, but made it clear to note that “the Court’s approval ‘does not mean. . . that the exact ESI protocol approved here will be appropriate in all [or any] future cases that utilize [TAR].’”  Later on, Judge Peck assigned a well-respected industry thought leader as special master to the case.

SPOLIATION / SANCTIONS

I’ll bet that you won’t be surprised that, once again, the topic with the largest number of case law decisions related to eDiscovery are those related to sanctions and spoliation issues.  Of the 72 cases we covered this past year, 39 percent of them (28 total cases) related to sanctions and spoliation issues.  Sometimes requests for sanctions are granted, sometimes they’re not.  Here are the first ten cases:

Appeals Court Upholds Default Judgment Sanctions for Defendant’s Multiple Discovery Violations: In Long Bay Management Co., Inc. et. al. v. HAESE, LLC et. al., the Appeals Court of Massachusetts found that the default judge had not abused her discretion in ordering sanctions and assessing damages and ordered that the plaintiffs could submit a petition for appellate attorneys’ fees incurred in responding to the appeal.

Court Grants Defendants’ Motion to Exclude Plaintiff’s Use of Spoliation Evidence: In West v. Talton, Georgia District Judge C. Ashley Royal granted the defendants’ Motion in Limine to exclude all evidence and argument regarding spoliation, reserving its ruling on the remaining issues in the Motion in Limine.

Not Preserving Texts Results in Adverse Inference Sanctions for Plaintiff: In NuVasive, Inc. v. Madsen Med., Inc., California Chief District Judge Barry Ted Moskowitz granted the defendants’ motion for adverse inference sanctions for failure to preserve text messages from four custodial employees that were key to the case.

Court States that Duty to Meet and Confer is Not an “Empty Formality”, Denies Request for Sanctions: In Whitesell Corporation v. Electrolux Home Products, Inc. et. al., Georgia District Judge J. Randal Hall denied the plaintiff’s motion for sanctions against the defendant for identifying a deponent that (according to the plaintiff) had no particularized information regarding the defendant’s efforts to produce documents, stating that he was “unimpressed” by the plaintiff’s effort to confer on the matter and stating that the “duty-to-confer is not an empty formality”.

Despite Failure to Implement a Litigation Hold, Defendant Escapes Sanctions: In Flanders v. Dzugan et. al., despite the fact that the defendant failed to implement a litigation hold, Pennsylvania District Judge Nora Barry Fischer denied the plaintiff’s Motion for Sanctions alleging the defendants failed to preserve evidence relevant to the case, finding that the plaintiff “cannot show any evidence was actually lost or destroyed”, “cannot show that if evidence was lost or destroyed, it would have been beneficial to his case” and “[n]or can Plaintiff show bad faith”.

Court Denies Motion for Sanctions Against Veterinary Hospital for Spoliation of ESI: In Grove City Veterinary Service, LLC et. al. v. Charter Practices International, LLC, Oregon Magistrate Judge John V. Acosta concluded that the plaintiffs had not met their burden of showing they are entitled to sanctions for spoliation of evidence by deleting one of the veterinarian’s archived work emails.

Defendant Gets Summary Judgment, Not Dismissal, Due to Plaintiff’s Wiping of Hard Drive: In Watkins v. Infosys, Washington District Judge John C. Coughenour denied the defendant’s Motion for the Sanction of Dismissal but granted the defendant’s Motion for Summary Judgment against the plaintiff for spoliation of data due to her use of “Disk Wiping” software to delete ESI.

Court Rules that State Agency is Not Responsible for Emails Deleted via the Retention Policy of Another State Agency: In Wandering Dago, Inc. v. N.Y. State Office of Gen. Servs., New York Magistrate Judge Randolph F. Treece denied the plaintiff’s request for sanctions, stating that “that neither the individual Defendants nor their Attorney had a duty to preserve” the emails of the Deputy Secretary of Gaming and Racing to the President of the New York Racing Authority (“NYRA”).

Apparently, in Discovery, Delta is Not Ready When You Are and It Has Cost Them Millions: A few years ago, we covered a case law decision in the Delta/Air Tran Baggage Fee Antitrust Litigation, where Delta was ordered to pay plaintiff attorney’s fees and costs for eDiscovery issues in that litigation. Apparently, Delta’s difficulties in this case have continued, as they have been ordered this week to pay over $2.7 million in sanctions for failing to turn over ESI, to go along with more than $4.7 million in sanctions for earlier discovery violations.

Court Denies Request for Sanctions for Routine Deletion of Files of Departed Employees: In Charvat et. al. v. Valente et. al., Illinois Magistrate Judge Mary M. Rowland denied the plaintiff’s request for spoliation sanctions for the defendant’s admitted destruction of computer files belonging to two departed employees, finding that the plaintiff did not provide any evidence that the defendant acted in bad faith.

Tomorrow, we will cover the remaining cases relating to sanctions and spoliation.  Stay tuned!

Want to take a look at cases we covered the previous four years?  Here they are:

So, what do you think?  Did you miss any of these?  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.

“We Don’t Need No Stinking Badges” – On Facebook: eDiscovery Case Law

If you’re near my age and love movies, you probably love the classic Mel Brooks comedy Blazing Saddles.  My favorite quote from that movie is when the bandido says “Badges?  We don’t need no stinking badges!”*  Apparently, there’s a new trend where people post pictures of their employee badges on social media.  Guess what that leads to?  Hacker access into their employer’s facilities.

According to an article on Forbes.com (Here’s Why Your Employer Gets Nervous When You Post Pictures On Facebook), there’s a new trend on social media where people are posting photos of their new employee ID badges called “badge bragging”.  Not surprisingly, according to Brian Varner, Cyber Security Services at Symantec, this trend can give a cyber criminal enough information to compromise personal or company security systems.

One example he cited involved a person who just started a new job at a prestigious hospital. He posted a photo of his new employee ID badge on social media. With just that photo, a hacker could copy the security bar code and make a fake badge to gain access to various systems. Also, the hacker would know the employee’s full name, department he worked in, his education, and the date he started.

Varner identified a few best practices that included developing a policy for employees that addresses posting images or details about work activities online, making security training a part of new employee onboarding and regular reinforcement of good security “hygiene” with constant communication to reinforce best practice behavior.

It’s amazing the ways that hackers can get personal information these days – avoiding security breaches is more challenging than ever.

*By the way, here’s a little trivia: this is not the first time that quote appeared on film or TV.  Most people think the Blazing Saddles quote is taken directly from the classic (not comedy) movie The Treasure of the Sierra Madre.  But, that quote is a little bit different (“Badges? We ain’t got no badges! We don’t need no badges!  I don’t have to show you any stinking badges!”).

The exact quote actually appeared first in an episode of the sixties TV comedy show The Monkees (the first episode of Season 2 in 1967, 6 1/2 years before it was used in Blazing Saddles).  Maybe Mel Brooks was a fan of The Monkees?  Stump your friends with that little piece of trivia!

So, what do you think?  Does your organization have policies in place regarding information shared by employees on social media?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Warner Bros. Inc.

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.

Not Preserving Texts Results in Adverse Inference Sanctions for Plaintiff: eDiscovery Case Law

In NuVasive, Inc. v. Madsen Med., Inc., No. 13cv2077 BTM(RBB) (S.D. Cal. July 22, 2015), California Chief District Judge Barry Ted Moskowitz granted the defendants’ motion for adverse inference sanctions for failure to preserve text messages from four custodial employees that were key to the case.

Case Background

In this contractual dispute, the defendants sought sanctions in the form of an adverse inference jury instruction for the plaintiff’s failure to preserve evidence, specifically, text messages from four employees.  The defendants contended that these text messages could have been evidence of secret coordination between the plaintiff and former employees of the defendants to effect the termination of the defendants’ contractual relationship with the plaintiff and then have the plaintiff hire the defendants’ sales personnel as its own employees.

With regard to the four employees, each had a different level of failure to preserve the text messages.  One former employee turned over his current phone for imaging instead of the phone used during the relevant time period, which he wiped clean before turning it over to his son. A second employee was not asked to turn in his phone until 2014 (after being notified of a litigation hold in August 2012 and again in September 2013) and when he did, all text messages prior to September 20, 2012 were missing (which the plaintiff attributed to an iPhone iOS 6 software update released on September 19, 2012). The third employee had his phone wiped when he turned it in for an upgrade on two separate occasions, pursuant to company policy.  The fourth employee did not provide the phone he used in 2012 until sometime in 2013 and testified that he may have deleted some relevant messages.

Judge’s Ruling

Judge Moskowitz stated that “In light of all of the text messages that were lost or deleted, the Court concludes that NuVasive was at fault for not enforcing compliance with the litigation hold. Although it is true that Defendants should have taken steps to preserve the text messages of Orlando and Kordonowy while they were still working for MMI, NuVasive still had a duty to preserve the evidence and failed to do so.”

Rejecting the plaintiff’s claims that the defendants had obtained most of the deleted/lost text messages through other individuals, Judge Moskowitz also found that “Defendants have made a sufficient showing of prejudice”, noting from other texts that the defendants provided that it could “reasonably be inferred from these texts, viewed together with other evidence, that the MMI sales representatives were talking to NuVasive about plans to terminate MMI and have the sales representatives work directly for NuVasive. Accordingly, texts during the relevant time period to or from Moore, Kordonowy, Graubart, and Orlando might have furthered MMI’s claims.”

As a result, Judge Moskowitz found that “a properly tailored adverse inference instruction is appropriate and will not cause ‘substantial unfairness’ to NuVasive” and decided to give the following instruction:

“NuVasive has failed to prevent the destruction of evidence for MMI’s and Ms. Madsen’s use in this litigation after its duty to preserve the evidence arose. After considering all of the pertinent facts and circumstances, you may, but are not obligated to, infer that the evidence destroyed was favorable to MMI and unfavorable to NuVasive.”

Judge Moskowitz denied the defendants’ request for attorney’s fees and costs “because Defendants were also partially at fault for not taking steps to preserve text messages of Kordonowy and Orlando while they were still working for MMI.”

So, what do you think?  Was the sanction appropriate for this case?  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.

Think Before You Hit Send (Unless You’re On Gmail and are Really Fast): eDiscovery Trends

Let’s face it, people make mistakes. However, a new feature from Google may help people who make those mistakes avoid the consequences – if they’re quick to address them.

As covered on Fortune.com (Gmail now officially lets you ‘Undo Send’ those really embarrassing e-mails, by Kia Kokalitcheva), Gmail, Google’s e-mail service, has officially added its “Undo Send” feature to the Web-based version of the service. Previously an experimental feature as part of Gmail’s “labs,” the feature lets users retract an e-mail after it’s been sent. Users can choose a time window between five and 30 seconds during which they’ll be able to recall that offending e-mail. So, if you’re modus operandi sometimes tends to be “ready, fire, aim”, you can avoid that critical mistake, if you notice it and act quickly.

Although Google actually first introduced the feature in 2009, it will now be located in Gmail’s general settings tabs instead of hidden in the “labs” section. However, users will have to manually enable it as the feature is not turned on by default. Google’s recently released email app, Inbox, also provides the “Undo Send” feature for those who need the safety net when on the go (which may be even more often than from the desktop).

Here’s a page with instructions on how to enable the “Undo Send” feature.

Imagine if this feature catches on with other applications, such as Microsoft Outlook? Or social media sites such as Facebook or Twitter? If this feature existed in these applications in the past, it might have helped many who may have wished that they could think after they send, including an all-pro NFL running back, a Chili’s waitress, the daughter of a former prep school head (who lost out on an $80,000 settlement), the social media manager of an NBA team and a former New York congressman (and former NYC mayoral candidate).

Regardless of which applications eventually have this feature, unless you’re very quick to catch your mistake, it’s still better to think before you hit send. Take a deep breath, look over the content, check to make sure you’ve selected the correct recipient(s), then hit send. Otherwise, you just might be the next social media disaster story covered on eDiscovery Daily!

So, what do you think? Do you think the “Undo Send” feature will catch on with other applications? 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.

You Almost Can’t Have a Divorce without Smartphone Evidence These Days: eDiscovery Trends

If you think the NSA is tough, hell hath no fury like a suspicious spouse scorned.

According to the American Academy of Matrimonial Lawyers (AAML) – not to be confused with the National Organization of Matrimonial Attorneys Nationwide (or N.O.M.A.N.) from the Coen Brothers movie Intolerable Cruelty (whose motto was “let N.O.M.A.N. put asunder”, get it?) – almost every divorce attorney works with smartphone evidence these days.

According to the AAML survey (press release here), a whopping 97% of members have seen an increase in divorce evidence being taken from smartphones and other wireless devices during the past three years. In addition, an almost universal number of 99% of respondents have cited a rising number of text messages being used in cases, while 67% have noted more evidence being gathered from apps. Not surprisingly, the top three apps for divorce evidence are also the most popular social media sites, with 41% citing Facebook, 17% choosing Twitter, and 16% identifying Instagram as sites where evidence was obtained.

“In the past, a suspicious spouse might have turned to a private investigator for this kind of detailed information, but nowadays most people willingly carry around some kind of wireless tracking device everywhere they go,” said James McLaren, president of the American Academy of Matrimonial Lawyers. “As with almost every aspect of our lives, smart phones and other wireless devices are having a big impact on the ways in which couples divorce.”

Overall, 97% of the attorneys cited an increase in the number of cases using evidence taken from smartphones and other wireless devices during the past three years, while 2% said no change and only 1% noted a decrease. The most common types of evidence gathered were cited by 46% as “texts,” while 30% said “emails,” 12% “phone numbers/call history,” 7% “Internet browsing/searches,” and “GPS” was noted by 4% of the respondents. In total, 99% cited an increase of cases using text messages during the past three years, while 1% noticed no change.

An increase in the number of cases using evidence taken from apps during the past three years was cited by 67% while 28% chose no change, and 5% noted a decrease. In addition to the top three apps listed for divorce evidence, the next selections included Find My iPhone and Snapchat at 6% each, 4% choosing Google Maps, Google+ at 3% and WhatsApp and Tinder each picked by 1% of the respondents.

So, if your divorce attorney is going to nail your spouse’s ass(ets), it will probably be with help from the ESI on his or her smartphone and social media accounts.

Once again, thanks for the tip from Sharon Nelson and her excellent Ride the Lightning blog!

So, what do you think? Do your cases include more ESI from smartphones? 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.