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Want a Definition of “Possession, Custody, or Control” of ESI? Look to The Sedona Conference: eDiscovery Best Practices

Hard to believe that we’re just now getting around to covering it, but The Sedona Conference® released a new commentary back in April. This guide strives to provide guidance to defining the phrase “possession, custody, or control” as it’s used in Federal Rules 34 and 45.

Rule 26(a) of the Federal Rules of Civil Procedure allows for the discovery of “documents, electronically stored information, and tangible things” in the responding party’s “possession, custody, or control.” Similarly, Rule 34(a) and Rule 45(a) obligate a party responding to a document request or subpoena to produce “documents, electronically stored information, and tangible things” in that party’s possession, custody, or control. However, nowhere does the Rules provide any definition of the phrase “possession, custody, or control”, requiring parties to look to case law for a definition. Unfortunately, the case law has proved to be unclear and inconsistent in providing such a definition. In addition, determining whether ESI should be considered to be in a responding party’s “possession, custody, or control” has become more complex, with the growing popularity of technologies and trends such as social media and cloud computing.

The public comment version of The Sedona Conference Commentary on Rule 34 and Rule 45 Possession, Custody, or Control was released in April to provide practical, uniform and defensible guidelines regarding when a responding party should be deemed to have “possession, custody, or control” of documents and all forms of electronically stored information (ESI) subject to Rule 34 and Rule 45 requests for production. A secondary purpose of the Commentary is to advocate abolishing use of the common-law “practical ability test” for purposes of determining Rule 34 and Rule 45 “control” of ESI, which has led to “inequitable” situations in which courts have held that a party has Rule 34 “control” of Documents and ESI even though the party did not have the actual ability to obtain the Documents and ESI.

The guide begins with a one-page Abstract that briefly describes the issue and the goal of the commentary, followed by a one-page list of the actual principles. They are:

  • Principle 1: A responding party will be deemed to be in Rule 34 or Rule 45 “possession, custody, or control” of Documents and ESI when that party has actual possession or the legal right to obtain and produce the Documents and ESI on demand.
  • Principle 2: The party opposing the preservation or production of specifically requested Documents and ESI claimed to be outside its control, generally bears the burden of proving that it does not have actual possession or the legal right to obtain the requested Documents and ESI.
  • Principle 3(a): When a challenge is raised about whether a responding party has Rule 34 or Rule 45 “possession, custody, or control” over Documents and ESI, the Court should apply modified “business judgment rule” factors that, if met, would allow certain, rebuttable presumptions in favor of the responding party.
  • Principle 3(b): In order to overcome the presumptions of the modified business judgment rule, the requesting party bears the burden to show that the responding party’s decisions concerning the location, format, media, hosting and access to Documents and ESI lacked a good faith basis and were not reasonably related to the responding party’s legitimate business interests.
  • Principle 4: Rule 34 and Rule 45 notions of “possession, custody, or control” should never be construed to trump conflicting state or federal privacy or other statutory obligations.
  • Principle 5: If a party responding to a specifically tailored request for Documents or ESI (either prior to or during litigation), does not have actual possession or the legal right to obtain the Documents or ESI that are specifically requested by their adversary because they are in the “possession, custody, or control” of a third party, it should, in a reasonably timely manner, so notify the requesting party to enable the requesting party to obtain the Documents or ESI from the third party. If the responding party so notifies the requesting party, absent extraordinary circumstances, the responding party should not be sanctioned or otherwise held liable for the third party’s failure to preserve the Documents or ESI.

The remainder of the guide covers 1) the background that led to the new principles, including inconsistent interpretations of “possession, custody, or control” within the Rules, shortcomings of the “practical ability test” and effect of new technologies on the analysis and 2) a detailed look at each of the new principles. There is also an Appendix with a lengthy spreadsheet of cases where “possession, custody, or control” was at issue.

As usual, the Commentary is free and can be downloaded here. As this is the public comment version, you can submit comments to info@sedonaconference.org, or fax(!) them to 602-258-2499.

So, what do you think? Will these new principles lead to a consistent application of “possession, custody, or control” within the courts? 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.

Court Rejects Defendants Motion Seeking Limitless Access to Plaintiff’s Facebook Account: eDiscovery Case Law

We haven’t had a good social media request case in a while – here’s one that compares to other cases we’ve covered in the past…

In the class action In re Milo’s Kitchen Dog Treats Consolidated Cases, Civil Action No. 12-1011 (W.D. Penn. April 14, 2015), 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.

Case Background

In this case, based on the discovery of the posting on the plaintiff’s Facebook page in which she indicated that another brand of chicken jerky dog treats caused the harm to her dog, the defendants were of the belief that there could be other relevant information on her Facebook account. The defendants sought that information in their Second Request for production, asking the plaintiff to produce “the Facebook Data and Facebook Data File of Lisa Mazur and/or Lisa Pierwsza Mazur.” Despite the fact that the defendants’ request was unlimited and objected to by the plaintiff as inherently overbroad, she nevertheless responded to the request and provided 648 pages of Facebook data, albeit redacted. The Facebook data provided contained information indicating that Plaintiff purchased dog treats other than Defendant’s brand, as well as conversations the plaintiff had with others about the dog treat brand and the case.

The defendants argued that it was improper for the plaintiff to unilaterally decide what should be redacted complaining that the location of certain redactions were “suspect” and contended that they were entitled to unfettered access to Plaintiff’s Facebook account including her username and password. Citing Largent v. Reed, 2011 WL 5632688, (Pa. C.P. Franklin Co. Nov. 8, 2011), Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) and McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), suggesting that “these cases stand for the proposition that Facebook accounts are always subject to unrestricted access once a threshold showing of relevance has been made”.

Judge’s Ruling

Referencing Fed.R.Civ.P. 26(b)(1), Judge Kelly stated that “Rulings regarding the proper scope of discovery, and the extent to which discovery may be compelled, are matters consigned to the Court’s discretion and judgment. A party moving to compel discovery bears the initial burden of proving the relevance of the requested information.”

With regard to the three cases cited by the defendants, Judge Kelly noted that they were “factually distinguishable from the instant case and, in this Court’s view, do not require the limitless access to Plaintiff’s Facebook account data advocated by Defendants.” In Largent v. Reed, for example, the plaintiff had refused to provide any Facebook data, whereas the plaintiff here produced 648 pages from her Facebook account. Judge Kelly also observed that pictures of the plaintiff “enjoying life with her family” in Facebook would not near as relevant as they would be in a personal injury litigation like Largent.

Agreeing with the plaintiff’s argument, Judge Kelly stated that “having already provided Defendants with Facebook data relevant to the case, Defendants have failed to make any showing that further production of her Facebook records would result in the dissemination of any more relevant information than has already been provided.” She therefore denied the defendants motion to compel.

With regard to the redactions, the plaintiff had redacted a conversation with another purported class member in the case because their conversation revolved around “specific advice given by class counsel as to the litigation and its progress”. Because of the dispute over the validity of the redactions, Judge Kelly decided “out of an abundance of caution”, “that the best course is to have Plaintiff produce the claimed privileged documents to the Court so that an in camera inspection can be conducted. In this manner, any truly privileged information will remain protected and Defendants can proceed confident that they have received all the relevant and non-privileged information from Plaintiff’s Facebook data.”

So, what do you think? Was that the correct decision or should the judge have treated this case like the three cases cited by the defendant? 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.

Even When You Win in the Playoffs, You Should Still Think Before You Hit Send: eDiscovery Trends

Since social media has become a big part of discovery, we like to good social media disaster story every once in a while. Last year, we covered the story of the former head of a private preparatory school in Miami, who lost out an $80,000 discrimination settlement after his daughter boasted about it on Facebook. And, of course, no discussion of social media disasters would be complete without mentioning Anthony Weiner. The latest example is the (now former) social media manager of my hometown Houston Rockets basketball team, who lost his job over an offensive tweet.

As covered in Click2Houston.com (Houston Rockets fire social media manager after offensive tweet, written by Syan Rhodes), the Rockets fired its social media manager Chad Shanks after his tweet in the waning moments of the Rockets’ series-clinching 104-93 Game 5 win over the Dallas Mavericks. With the game essentially in hand, Shanks posted a tweet using emoji characters of a horse with a gun to its head and the words, “Shhhhh. Just close your eyes. It will all be over soon”.

The Mavericks’ official Twitter account reacted, tweeting, “Not very classy but we still wish you guys the very best of luck in the next round.” Not long after, the Rockets’ tweet was removed and the team was apologizing, “Our Tweet earlier was in very poor taste & not indicative of the respect we have for the @dallasmavs & their fans. We sincerely apologize.”

The next day, Shanks was fired.

“I’ve kind of made my name, so to speak, even though a lot of people didn’t know who I am, being a little more edgy, pushing the envelope a little bit and trying to be funny”, Shanks was quoted in an interview with KPRC. “It was heat of the moment. My emotions got the best of me and I didn’t see how that tweet would offend so many people. And that was my mistake; I should have thought that through a little better.”

Shanks also tried to address the controversial tweet head-on, stating “People were upset, feeling I advocated violence toward animals. That wasn’t what I meant at all. It was just a jab at taking out the Mavericks and I really didn’t mean to offend anyone,” he said. “I’m sorry it ended this way, but I’m grateful for the opportunities they gave me. I loved every second of the job.”

Shanks is getting a lot of support online with the hashtag #BringBackChad and there’s even a change.org petition to try to get him reinstated.

And, there is at least a bit of a happy ending. Dan Le Batard, of ESPN, hired Shanks during his ESPNRadio show to run his show’s Twitter account (through Saturday night, covering the NFL Draft, among other big sports events). Hey, even Anthony Weiner made a comeback – sort of.

So, what do you think? Do you have any social media disasters in your organization? 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.

Plaintiff’s Motion to Quash Subpoena of Text Messages Granted by Court: eDiscovery Case Law

In Burdette v. Panola County, No. 3:13CV286-MPM-SAA (N.D. Miss. February 4, 2015), 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.

Case Background

In this employment case, the defendant issued a subpoena to AT&T Subpoena Compliance Center for production of “[a]ny and all calls and text messages made from and received from [the plaintiff’s phone number] in the custody and control of AT&T for the dates of April 23, 2012, beginning 1:00 p.m. through May 27, 2012.” The defendants stated that the subpoena was necessary because plaintiff had avoided producing ESI that is relevant to the claims at issue and failed to maintain either the phone upon which he recorded a conversation the day of his discharge or the computer to which he later transferred the phone recording.

The plaintiff contended that the subpoena was overly broad, harassing, irrelevant, and potentially sought information protected by the attorney client privilege, as the requested text messages would undoubtedly include texts to and from his family members and possibly to and from his attorney. The plaintiff also noted that the period of time for which the text messages and calls were sought extended twenty days after the plaintiff was terminated.

Judge’s Opinion

Judge Alexander noted that the defendants “have offered no explanation for why these text messages and phone calls are relevant and has not agreed to limit the production of them in any way”. Despite the fact that the plaintiff failed to maintain the phone and computer, Judge Alexander determined that “neither of those two facts support the request for all of plaintiff’s text messages and phone calls before and for three weeks after his termination. If defendants desire to seek a spoliation instruction, they are permitted to do so, but defendants have failed to convince the undersigned that production of text messages and phone call logs will resolve any issue relating to the recorded conversation. The court will not permit irrelevant discovery that appears to be more harassing than productive.”

“Weighing the factors set out by the Fifth Circuit for quashing a subpoena, the relevance factor clearly weighs against production of the phone records”, stated Judge Alexander, finding that “the breadth of the request is entirely too wide even if a valid reason for the request had been established.” As a result, he granted the plaintiff’s request to quash the defendant’s subpoena.

So, what do you think? Was the defendants’ request overbroad? Or did they have a valid reason for the subpoena, given that the plaintiff failed to produce relevant 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. eDiscoveryDaily 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.

Need Help on Handling Social Media, Cloud and Mobile Data Sources? Check Out this Conference: eDiscovery Trends

Last week, we announced that eDiscoveryDaily is a new Education partner of EDRM. University of Florida Levin College of Law is another EDRM Education partner and will be teaming up with EDRM to host the 3rd Annual UFLaw and EDRM Electronic Discovery Conference on Friday, March 27.

The conference is focusing its attention this year on litigation involving social media, the cloud, and mobile devices. Data from a multitude of social platforms and mobile devices (such as your automobile, Fitbit, iPhone, smart TV and even your thermostat) capture our movements, our moods, and the everyday moments of our lives. That data is stored everywhere – on our devices, at remote locations, and in the cloud. This critical information can make or break any litigation and investigation.

The event will take place in Holland Hall at the University of Florida, Levin College of Law, and will be streamed online as well. It runs from 8:00 am to 6:00 pm Eastern time. George Socha, co-founder of EDRM and William Hamilton, Partner, Quarles & Brady are co-chairs and there are a number of knowledgeable presenters, including Craig Ball and Monica Bay. 6.5 general CLE credits are available for attendees. Here’s a link to the agenda.

The entire day-long conference is available online for $99, or in person for $199. EDRM members receive a discounted rate of $45 for online or $99 for in person attendance (select “Certified Conference Friends” at time of registration). The Conference is completely free to all employees of federal and state governmental agencies, judges and judicial staff, students, and academics. Click here to register.

So, what do you think? Do you feel that you have a handle on social media, the cloud, and mobile devices? If not, are you attending the conference? 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. eDiscoveryDaily 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.

When Claiming Workplace Injury, Facebook Posts Aren’t Handy, Man: eDiscovery Case Law

In Newill v. Campbell Transp. Co., 2:12-cv-1344 (W.D. Pa. Jan. 14, 2015), 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.

Case Summary

In this workplace injury case related to the plaintiff’s employment with a shipping company, the plaintiff sought, via his motion, to preclude the defendant from introducing several of his Facebook posts into evidence, on the basis that they are irrelevant or would be unfairly prejudicial. The defendant responded that the posts were relevant to show that following the accident the plaintiff retained the ability to engage in physical activities despite his claim of injury.

The defendant sought to introduce Facebook posts where the plaintiff discussed “physically taxing activities” such as painting, landscaping, flooring, going to the gym, undercoating a truck, and “going physical”. The plaintiff also apparently advertised his services as a handyman and suggested that “no job [was] 2 big or 2 small.” The Defendant also argued that the posts were relevant to the question of the plaintiff’s employability, which the defendant’s expert testified would have been improved if he adopted a “sensible social medial presence” and eliminated posts containing “casual or rough language” on Facebook.

Judge’s Decision

Judge McVerry found that “posts from Plaintiff’s Facebook account ‘that reflect physical capabilities inconsistent with a plaintiff’s claimed injury are relevant.’”  He also stated, however:

“While the Court understands that Plaintiff may be embarrassed by the content of some of his posts, that alone is not a sufficient basis for excluding the posts under Rule 403. If, at trial, Defendant attempts to introduce a particular Facebook post that Plaintiff feels is unduly embarrassing, the issue of the admissibility can be re-raised at that time and the Court reserves the discretion to exclude it pursuant to Fed. R. Evid. 611 (granting the court discretion to bar harassment and undue embarrassment of a witness).

As to Defendant’s second argument, the Court is not convinced that Costantini should be permitted testify about Plaintiff’s inane postings on Facebook when discussing the issue of his employability. To be sure, potential employers do often consider an applicant’s Facebook account when making a hiring decision. But Costantini’s testimony that Plaintiff’s Facebook account “probably is not giving the employers a good impression” is nothing more than speculation. There is nothing in the record actually linking his Facebook posts to his inability to obtain new employment until recently or suggesting that the types of jobs for which Plaintiff was qualified would be harder to obtain because of his Facebook posts. Without such a link having been established, Costantini has no basis to offer an opinion on these matters.”

As a result, Judge McVerry denied the portion of the plaintiff’s motion “insofar as it seeks to prevent Defendant from introducing Facebook posts that tend to contradict his claimed damages”, but granted the portion with regard to the defendant’s expert being permitted to rely on Plaintiff’s Facebook posts in assessing his employability.

So, what do you think? Should the defendant be prohibited from introducing posts that demonstrate the plaintiff’s employability? 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. eDiscoveryDaily 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.

Plaintiffs Not Sanctioned for Late Production, Citing Their $29,000 Expense to Hire Experts to Assist: eDiscovery Case Law

In Federico et al. v. Lincoln Military Housing LLC, et al., 2:12-cv-80 (E.D. VA, Dec. 31, 2014), Virginia Magistrate Judge Douglas E. Miller, concluding that the defendants had not established that the plaintiffs had acted in bad faith when failing to meet production deadlines, declined to impose “any further sanction against Plaintiffs beyond the $29,000 expense associated with their expert’s production of the Facebook records”, except for a portion of the reasonable attorney’s fees associated with the original motion to compel.

Case Summary

In this class action for personal injury and property damage allegedly arising from mold in military housing, there had been numerous discovery disputes, including several motions for sanctions and reciprocal requests for costs and fees related to the parties’ alleged non-compliance. On June 4, 2014, the Court held the first hearing on discovery disputes, which came on the plaintiffs’ motions for Protective Orders seeking relief from the defendants’ requests for production, and certain subpoenas, during which the Court admonished the assembled plaintiffs present at the hearing to turn over related material to their attorney and permit counsel to determine whether it was relevant. The Court also advised the plaintiffs that there could be consequences if materials were not provided as required by the Rules.

After the plaintiffs’ supplemental productions were still considered incomplete by the defendant, the plaintiffs’ counsel stated they had engaged an outside vendor to provide estimates (which were then estimated to be $22,450, eventually rising to $29,000) and design a search protocol for electronic media. On July 10, the plaintiffs requested an emergency hearing to extend the July 17 production deadline, which the Court declined to do, advising plaintiffs’ counsel that if the plaintiffs were unable to produce any more responsive documents, they were required to advise the Court and defendants of the nature of any search they had performed. After the plaintiffs failed to meet the production deadline, the defendants filed a motion for sanctions to dismiss the plaintiffs’ claims for failure to comply.

In subsequent oral argument regarding the defendants’ motion, the plaintiffs indicated that they had engaged their IT consultant, who was present and described the ongoing process for searching and processing relevant records, primarily from social media. As a result, the Court deferred any ruling until after the consultant’s production. In September, Plaintiffs produced the results of their consultant’s search, including over 5,000 records from social media, and contended that any material omitted resulted from their clients’ inexperience in managing electronic production and not from bad faith or intentional destruction of evidence.

Judge’s Decision

Judge Miller used the Fourth Circuit’s four-part test to help decide whether to impose sanctions, as follows: (1) whether the non-complying party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4) whether less drastic sanctions would have been effective. With regard to the bad faith factor, Judge Miller stated:

“Defendants have failed to establish that any Plaintiff deliberately destroyed evidence known to be relevant, or otherwise acted in bad faith. While Plaintiffs’ delayed production should not have required Court action, they did eventually produce a nearly complete record of email and social medial posts and these materials were available to Defendants prior to most of the depositions. In addition, the limited relevance of the voluminous material produced suggests that any gaps in production were not likely intentional and do not prejudice Lincoln’s defense.”

As a result, Judge Miller ruled that the Court “declines to impose any further sanction against Plaintiffs beyond the $29,000 expense associated with their expert’s production of the Facebook records, but will award a portion of the reasonable attorney’s fees associated with the original motion to compel.”

So, what do you think? Should the plaintiffs have been sanctioned for their late production or was the judge’s ruling appropriate, considering the plaintiffs’ challenges and expense and efforts to comply? 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. eDiscoveryDaily 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.

2014 eDiscovery Case Law Yhttps://cloudnine.com/ediscoverydaily/case-law/2014-ediscovery-case-law-year-in-review-part-3/ear in Review, Part 3

As we noted yesterday and the day before, eDiscoveryDaily published 93 posts related to eDiscovery case decisions and activities over the past year, covering 68 unique cases! Yesterday, we looked back at cases related to eDiscovery cost sharing and reimbursement, fee disputes and production format disputes. Today, let’s take a look back at cases related to privilege and inadvertent disclosures, requests for social media, cases involving technology assisted review and the case of the year – the ubiquitous Apple v. Samsung dispute.

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!

PRIVILEGE / INADVERTENT DISCLOSURES

There were a couple of cases related to privilege issues, including one where privilege was upheld when the plaintiff purchased the defendant’s seized computer at auction! Here are two cases where disclosure of privileged documents was addressed:

Privilege Not Waived on Defendant’s Seized Computer that was Purchased by Plaintiff at Auction: In Kyko Global Inc. v. Prithvi Info. Solutions Ltd., Washington Chief District Judge Marsha J. Pechman ruled that the defendants’ did not waive their attorney-client privilege on the computer of one of the defendants purchased by plaintiffs at public auction, denied the defendants’ motion to disqualify the plaintiff’s counsel for purchasing the computer and ordered the plaintiffs to provide defendants with a copy of the hard drive within three days for the defendants to review it for privilege and provide defendants with a privilege log within seven days of the transfer.

Plaintiff Can’t “Pick” and Choose When it Comes to Privilege of Inadvertent Disclosures: In Pick v. City of Remsen, Iowa District Judge Mark W. Bennett upheld the magistrate judge’s order directing the destruction of an inadvertently-produced privileged document, an email from defense counsel to some of the defendants, after affirming the magistrate judge’s analysis of the five-step analysis to determine whether privilege was waived.

SOCIAL MEDIA

Requests for social media data in litigation continue, though there were not as many disputes over it as in years past (at least, not with cases we covered). Here are three cases related to social media data:

Plaintiff Ordered to Produce Facebook Photos and Messages as Discovery in Personal Injury Lawsuit: In Forman v. Henkin, a Motion to Compel was granted in part for a defendant who requested authorization to obtain records of the plaintiff’s private postings to Facebook.

Plaintiff Ordered to Re-Open Social Media Account for Discovery: In Chapman v. Hiland Operating, LLC, while noting that he was “skeptical” that reactivating the plaintiff’s Facebook account would produce any relevant, noncumulative information, North Dakota Magistrate Judge Charles S. Miller ordered the plaintiff to “make a reasonable, good faith attempt” to reactivate her Facebook account.

Order for Financial Records and Facebook Conversations Modified Due to Privacy Rights: In Stallings v. City of Johnston City, Illinois Chief District Judge David R. Herndon modified an earlier order by a magistrate judge in response to the plaintiff’s appeal, claiming that the order violated the privacy rights of the plaintiff, and of minor children with whom the plaintiff had held conversations on Facebook.

TECHNOLOGY ASSISTED REVIEW

Technology assisted review continued to be discussed and debated between parties in 2014, with some disputes involving how technology assisted review would be conducted as opposed to whether it would be conducted at all. Courts continued to endorse technology assisted review and predictive coding, even going so far as to suggest the use of it in one case. Here are six cases involving the use of technology assisted review in 2014:

Court Rules that Unilateral Predictive Coding is Not Progressive: In In Progressive Cas. Ins. Co. v. Delaney, Nevada Magistrate Judge Peggy A. Leen determined that the plaintiff’s unannounced shift from the agreed upon discovery methodology, to a predictive coding methodology for privilege review was not cooperative. Therefore, the plaintiff was ordered to produce documents that met agreed-upon search terms without conducting a privilege review first.

Court Rules in Dispute Between Parties Regarding ESI Protocol, Suggests Predictive Coding: In a dispute over ESI protocols in FDIC v. Bowden, Georgia Magistrate Judge G. R. Smith approved the ESI protocol from the FDIC and suggested the parties consider the use of predictive coding.

Court Sides with Defendant in Dispute over Predictive Coding that Plaintiff Requested: In the case In re Bridgepoint Educ., Inc., Securities Litigation, California Magistrate Judge Jill L. Burkhardt ruled that expanding the scope of discovery by nine months was unduly burdensome, despite the plaintiff’s request for the defendant to use predictive coding to fulfill its discovery obligation and also approved the defendants’ method of using search terms to identify responsive documents for the already reviewed three individual defendants, directing the parties to meet and confer regarding the additional search terms the plaintiffs requested.

Though it was “Switching Horses in Midstream”, Court Approves Plaintiff’s Predictive Coding Plan: In Bridgestone Americas Inc. v. Int’l Bus. Mach. Corp., Tennessee Magistrate Judge Joe B. Brown, acknowledging that he was “allowing Plaintiff to switch horses in midstream”, nonetheless ruled that that the plaintiff could use predictive coding to search documents for discovery, even though keyword search had already been performed.

Court Approves Use of Predictive Coding, Disagrees that it is an “Unproven Technology”: In Dynamo Holdings v. Commissioner of Internal Revenue, Texas Tax Court Judge Ronald Buch ruled that the petitioners “may use predictive coding in responding to respondent’s discovery request” and if “after reviewing the results, respondent believes that the response to the discovery request is incomplete, he may file a motion to compel at that time”.

Court Opts for Defendant’s Plan of Review including TAR and Manual Review over Plaintiff’s TAR Only Approach: In Good v. American Water Works, West Virginia District Judge John T. Copenhaver, Jr. granted the defendants’ motion for a Rule 502(d) order that merely encouraged the incorporation and employment of time-saving computer-assisted privilege review over the plaintiffs’ proposal disallowing linear privilege review altogether.

APPLE V. SAMSUNG

Every now and then, there is a case that just has to be covered. Whether it be for the eDiscovery related issues (e.g., adverse inference sanction, inadvertent disclosures, eDiscovery cost reiumbursement) or the fact that billions of dollars were at stake or the fact that the case earned its own “gate” moniker, the Apple v. Samsung case demanded attention. Here are the six posts (just from 2014, we have more in previous years) about this case:

Quinn Emanuel Sanctioned for Inadvertent Disclosure, Samsung Escapes Sanction: California Magistrate Judge Paul S. Grewal has now handed down an order on motions for sanctions against Samsung and the Quinn Emanuel law firm in the never-ending Apple v. Samsung litigation for the inadvertent disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate”.

Apple Can’t Mention Inadvertent Disclosure in Samsung Case: Back in January, Quinn Emanuel Urquhart & Sullivan LLP was sanctioned for their inadvertent disclosure in the Apple vs Samsung litigation (commonly referred to as “patentgate”). California Magistrate Judge Paul S. Grewal handed down an order on motions for sanctions against Quinn Emanuel (in essence) requiring the firm to “reimburse Apple, Nokia, and their counsel for any and all costs and fees incurred in litigating this motion and the discovery associated with it”. Many felt that Samsung and Quinn Emanuel got off lightly. Now, Apple can’t even mention the inadvertent disclosure in the upcoming Samsung trial.

Apple Wins Another $119.6 Million from Samsung, But It’s Only 6% of What They Requested: Those of you who have been waiting for significant news to report from the Apple v. Samsung litigation, your wait is over! As reported last week in The Recorder, a California Federal jury ordered Samsung on Friday to pay Apple $119.6 million for infringing three of Apple’s iPhone patents. However, the award was a fraction of the nearly $2.2 billion Apple was requesting.

Samsung and Quinn Emanuel Ordered to Pay Over $2 Million for “Patentgate” Disclosure: Remember the “patentgate” disclosure last year (by Samsung and their outside counsel firm of Quinn Emanuel Urquhart & Sullivan LLP) of confidential agreements that Apple had with Nokia? Did you think they were going to avoid having to pay for that disclosure? The answer is no.

Court Refuses to Ban Samsung from Selling Products Found to Have Infringed on Apple Products: Apple may have won several battles with Samsung, including ultimately being awarded over $1 billion in verdicts, as well as a $2 million sanction for the inadvertent disclosure of its outside counsel firm (Quinn Emanuel Urquhart & Sullivan LLP) commonly known as “patentgate”. But, Samsung has may have won the war with the court’s refusal to ban Samsung from selling products that were found to have infringed on Apple products.

Apple Recovers Part, But Not All, of its Requested eDiscovery Costs from Samsung: Apple won several battles with Samsung, including ultimately being awarded over $1 billion in verdicts, as well as a $2 million sanction for the inadvertent disclosure of its outside counsel firm (Quinn Emanuel Urquhart & Sullivan LLP) commonly known as “patentgate”, but ultimately may have lost the war when the court refused to ban Samsung from selling products that were found to have infringed on Apple products. Now, they’re fighting over relative chicken-feed in terms of a few million that Apple sought to recover in eDiscovery costs.

Tomorrow, we will cover cases related to the most common theme of the year (three guesses and the first two don’t count). Stay tuned!

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. eDiscoveryDaily 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.

Twitter Might “Bug” You if You Want to Retrieve Archive Data – eDiscovery Best Practices
 

Thanks to the Google Alerts that I set up to send me new stories related to eDiscovery, I found an interesting blog post from an attorney that appears to shed light on an archival bug within Twitter that could affect people who may want to retrieve Twitter archival data for eDiscovery purposes.

In Erik J. Heels’ blog, his latest post (Twitter Bug Makes Tweet Archives Unreliable For eDiscovery), he starts by noting that his very first tweet of October 30, 2008 is no longer active on his site – his earliest tweet was dated September 5, 2010.  All attempts to try to locate the tweets were unsuccessful and customer service was no help.

After some digging, Erik found out that, on October 13, 2010, Twitter announced the “new Twitter” which included a new user interface.  As part of that revamping, Twitter changed the format for its status URLs (Tweets) so that the sequential number at the end of each Tweet (the Tweet ID) changed length, eventually doubling from nine digits in 2008 to 18 digits today (which supports up to one quintillion tweets).

Then, on December 12, 2012, Twitter announced that users could export archives of their Tweets (via your account’s Settings page).  The result is a nine field comma-separated values (CSV) file with information, including the tweet ID.  So, now you could retrieve your old tweets that were no longer actively stored, right?  Not necessarily.

As Erik found out, when he exported the file and went to retrieve old tweets, some of his tweet IDs actually pointed to other people’s tweets!  You can see the details of his tests in his blog post or via his 60 second YouTube video here.

Obviously, if you need to retrieve archived tweets for eDiscovery purposes, that’s not a good thing.

As it happens, CloudNine Discovery has our own Twitter account (@Cloud9Discovery) and has since August of 2009 (we were known as Trial Solutions back then), so I decided to run my own test and exported our archive.  Here’s what I found:

  • Our very first tweet was August 17, 2009 (Trial Solutions Ranks 2,830 on the Exclusive 2009 Inc. 5000).  It retrieved correctly.  The bit.ly link within the tweet isn’t hyperlinked, but if you copy and paste it into the browser address, it correctly retrieves (obviously, this will only be the case if the referenced web page still exists).
  • In fact, all of the early tweets that I tested retrieved with no problem.
  • Then, on December 1, 2010, I encountered the first tweet that didn’t retrieve correctly (one of our blog posts titled eDiscovery Project Management:  Effectively Manage Your Staff) with a tweet ID of 9924696560635900 (Full URL: https://twitter.com/Cloud9Discovery/status/9924696560635900).  It didn’t point to a different person’s tweet, it simply said “Sorry, that page doesn’t exist!”
  • From that point on, none of the tweets that I tried to retrieve would retrieve – all gave me the “page doesn’t exist” message.
  • I even tried to retrieve our tweet of yesterday’s blog post (Defendant Ordered to Produce Archived Emails Even Though Plaintiff Failed to Produce Theirs – eDiscovery Case Law) via the tweet ID provided in the archive file (535098008715538000).  Even it wouldn’t retrieve.  Wait a minute, what’s going on here!

I then retrieved our tweet of yesterday’s blog post by clicking on it directly within Twitter.  Here is the URL to the tweet with the ID at the end: https://twitter.com/Cloud9Discovery/status/535098008715538434.

See the problem?  The tweet IDs don’t match.

I ultimately determined that all of the tweet IDs provided in the archive file starting on December 1, 2010 end with two or more zeroes.  Starting on November 5, 2010, they all end with at least one zero.  When I started testing those, I re-created Erik’s problem:

Our tweet on November 29, 2010 titled eDiscovery Trends: Sanctions at an All-Time High, (tweet ID: 9199940811100160) actually retrieves a tweet by @aalyce titled @StylesFever snog liam marry louis and niall can take me out 😉 hehe.  Whoops!

It appears as though the archive file provided by Twitter is dropping all digits of the tweet ID after the fifteenth digit and replacing them with zeroes, effectively pointing to either an invalid or incorrect page and rendering the export effectively useless.  Hopefully, Twitter can fix it – we’ll see.  In the meantime, don’t rely on it and be prepared to address the issue if your case needs to retrieve archived data from Twitter.  Thanks, Erik, for the heads up!

So, what do you think?  Have you ever had to preserve or produce data from Twitter in litigation?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.