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Doug Austin

Did the Plaintiff Send a Letter to Confer with Defendants? It’s Anybody’s “Guess”: eDiscovery Case Law

See what I did there?  ;o)

In Simpson v. J.L. Guess et al., No. 3:18-cv-547-J-39PDB (M.D. Fla. March 20, 2020), Florida District Judge Brian A. Davis ruled on several motions from both the plaintiff and defendants, including denying the defendants’ motion for sanctions over whether the plaintiff sent a letter to confer with defense counsel about the motion to compel.

Case Background

In this case by a prisoner proceeding pro se alleging use of excessive force by six correctional officers, the Court ruled on the plaintiff’s motion to compel, the plaintiff’s motion for an extension of time to respond to the defendants’ motion for summary judgment, the plaintiff’s request to strike a declaration of defense counsel and the defendants’ request for sanctions up to dismissal of the action.

Judge’s Ruling

With regard to the plaintiff’s motion to compel and motion for an extension of time, the defendants responded that three officers had no records of discipline, and three others had no records of discipline for use of excessive force on an inmate.  But, Judge Davis stated, in granting both motions: “Contrary to the defendants’ argument, records of discipline are relevant even if the discipline was for something other than use of excessive force on an inmate…In responding to the discovery request, the defendants made no objection about proportionality, instead focusing on relevancy, inadmissibility under Federal Rule of Evidence 404(b), and confidentiality and now provide no analysis about proportionality using the pertinent factors.”

However, Judge Davis denied the plaintiff’s request to strike a declaration of defense counsel, stating: “Accepting a lawyer’s representation that his client has no responsive documents is commonplace in civil litigation absent evidence of misrepresentation beyond conjecture. Matters about discovery collection and review will not be part of the trial as matters merely collateral to the claims tried before the jury. There is no risk defense counsel will be called to testify at trial.”

With regard to the defendants’ motion for sanctions, the plaintiff declared (under penalty of perjury) he tried to confer with defense counsel about the motion to compel by letter (and included a copy of the letter), but received no response.  Conversely, defense counsel declared (under penalty of perjury) he received no letter from the plaintiff and contended the plaintiff was “a liar and a fraudster who has maligned defense counsel’s character”.  There was a dispute over whether the prison logs outgoing mail from prisoners, but Judge Davis said:

“The declarations create material issues of fact on facts immaterial to the merits of the claims and defenses: whether the plaintiff lied when he said he mailed the letter, whether defense counsel lied when he said he never received the letter, whether no one lied because the letter was sent but not received due to inadvertent misplacement or loss at the prison, the post office, or defense counsel’s office, and whether defense counsel misled the Court by suggesting the log would reflect outgoing mail. In the interest of the just, speedy, and inexpensive resolution of this action…the Court declines to conduct an evidentiary hearing on these collateral issues or otherwise divert limited resources to trying to resolve them and thus denies the defendants’ request for sanctions…But to confront an alleged but unaddressed misrepresentation by a lawyer, the Court directs defense counsel to inform the Court whether any log actually would reflect outgoing mail sent by the plaintiff…The information must be provided by April 30, 2020.”

So, what do you think?  Should the plaintiff be given the benefit of doubt under the circumstances?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

No Fooling! It’s Time for the 2020 Internet Minute Infographic!: eDiscovery Trends

This is not an April Fool’s Joke!  With all of the craziness of the past few weeks, it slipped up on me, but here is the 2020 Internet Minute infographic!

Hard to believe that we’ve been looking at internet minute infographics each year for the past five years, but time flies – minute by minute (see what I did there?).  ;o)

The updated graphic shown above, once again created by Lori Lewis, illustrates what happens within the internet in a typical minute in 2020.  As always, there are a couple of different categories tracked in this graphic than last year’s, but most are the same and those that are carried forward are, once again, (almost) all up compared to last year – some more than others.  For example, people “Tweeting” is up nearly 2.5 times last year and Instagram scrollers nearly twice as much.  No word whether the current craziness (I’m not going to say the “C” word today) was factored into the Netflix increase of 10% (my guess – not), or what percentage of those Netflix viewers were tuned into the  Tiger King limited series (trust me, you can’t stop watching it).

Regardless, here is a comparison between 2019 and 2020 (we previously published the graphic for 2016, 2017 and 2018):

In her post, Lori also goes through some of her observations on the trends.  As always, I can’t vouch for the accuracy of the numbers, so take them for what it’s worth.  Nonetheless, a picture may be worth a thousand words, but an infographic is worth one blog post topic (at least once a year).   ;o)

Speaking of trends, Rob Robinson’s Complex Discovery site has published its list of eDiscovery Mergers, Acquisitions, and Investments in Q1 2020.  As you can imagine, with the current climate having unfolded as the quarter progressed, M&A+I activity is down significantly in 2020 (nine total events, five of those in January) vs Q1 2019 (fifteen total events) and vs. Q1 2018 (fourteen total events).  As always, Rob provides a list of M&A+I events between November 2001 and current (419 of them), so feel free to check those out — they are always interesting.

So, what do you think?  How have the challenges of various sources of data affected your organization?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Parties Are Battling Over Whether COVID-19 Should Delay CCPA Enforcement: Data Privacy Trends

With so many other initiatives being delayed because of the coronavirus pandemic, it was only a matter of time before compliance with the California Consumer Privacy Act (CCPA) was one of those being considered. However, despite several organizations pushing for enforcement of CCPA to be pushed back six months to January 1 of next year, other organizations are resisting any delay by the state.

According to LAW360 (COVID-19 Fuels Heated Fight Over CCPA Enforcement Timing, written by Allison Grande), the California attorney general’s office has said it has no intention to cave to mounting pressure from businesses (including the California Chamber of Commerce, UPS, the Internet Coalition, the Association of National Advertisers and 30 others) to delay enforcement of the California Consumer Privacy Act until early next year.  However, calls for such a pause are only likely to intensify in the coming months as the novel coronavirus forces companies to reevaluate their priorities and stretches IT departments thin, attorneys said.

“Companies understandably need to focus now almost singularly on the health and safety of their employees and consumers and on business continuity,” said BakerHostetler partner Alan Friel, whose firm filed comments with the attorney general on March 16 arguing for the planned July 1 enforcement deadline to be extended by six months.

“Just as tax return and payment obligations have been pushed back to allow time and resources to be directed to COVID-19 response, so should the CCPA enforcement date,” Friel said.

That stance has faced resistance from advocacy groups such as Consumer Reports, which has urged the state to stay the course in order to ensure that the CCPA’s robust consumer protections are being properly implemented during these unprecedented times.

The Electronic Privacy Information Center has also opposed the bid to delay enforcement, with its president, Marc Rotenberg, telling Law360 that he was “very disappointed” to see the business community attempting “to use a public health crisis as a reason to delay implementation” of the law.

“That is both reckless and irresponsible,” he said.

However, even if the California Chamber of Commerce, UPS, the Association of National Advertisers and others are successful in their bid to secure a delay or even a formal assurance that the state will go easy on enforcement, companies can’t just write off their obligations to adhere to the law, which took effect Jan. 1, or to implement regulations that the attorney general is still drafting.

While Attorney General Xavier Becerra isn’t allowed to begin bringing enforcement actions until July, nothing prevents the regulator from coming down on companies for conduct that dates back to the law’s Jan. 1 effective date, and the attorney general has already said he intends to hold businesses accountable for their actions across CCPA’s entire lifespan.  Of course, business groups, in both their latest letter and a separate January correspondence seeking a similar enforcement delay, have also urged the attorney general to take into account that the regulations meant to help guide companies’ implementation of the novel law haven’t been finished.  So, as usual, the CCPA situation is clear as mud.

By the way, LAW360 is offering free coronavirus legal news during the pandemic, including this resource that enables you to see the latest with regard to the affect of the pandemic on Federal and State courts.  Simply hover your cursor over the state (or territory) to see an update for that selection.  Postponements of dockets are pretty much universal all over – the only question is for how long.

So, what do you think?  Should organizations be responsible for compliance with CCPA during the pandemic, especially given that the California AG hasn’t finished the regulations yet?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Return of the eDiscovery Daily Thought Leader Interviews!: eDiscovery Trends

Let’s face it, we need something to take our mind off the COVID-19 pandemic more than ever.  So, with that in mind, the appearance of the dancing light bulb can only mean one thing – it’s time for another thought leader series!

Given that there’s not a lot of eDiscovery-specific news to cover right now with Federal and State courts closed and other eDiscovery activities limited, I thought now might be a good time to bring back the Thought Leader interviews that I conducted at Legaltech for eight years straight from 2011 to 2018.  Over the first 7+ years of our existence, eDiscovery Daily published several thought leader interviews from various thought leaders throughout the eDiscovery community, including an annual series of interviews at Legaltech New York (LTNY) from 2011 to 2018.

We would have continued doing them, but I went from managing one product at the beginning of 2018 to 5+ products now – with regard to the “+”, more on that later – and CloudNine hosted the NineForum presentations the past couple of years at LTNY, which left little time for me to conduct thought leader interviews.  Hence, the pause.

But, now we need something to talk about.  Something, anything other than COVID-19.  So, I thought it would be a great time to bring back the thought leader interviews and I reached out to several well known eDiscovery thought leaders to gauge their interest in participating (with the intent to reach out to several others as well).  At least half a dozen expressed an interest and willingness to do an interview, so it’s on!

Unlike past years when we have conducted them, I won’t be publishing a schedule in advance.  My goal will be to publish one a week for as long as I have eDiscovery thought leaders willing to be interviewed.  Hopefully, that will be at least as long as we are all “on pause” during this pandemic.  If not a lot longer.

So, what do you think?  Are you looking for other topics to read about during the COVID-19 pandemic?  Me too  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Despite Estimate of 37 Years to Crack iPhone, Government Doesn’t Have to Return it – Yet: eDiscovery Case Law

Tired of stories about COVID-19?  So are we.  So, here’s an interesting case to take a look at instead.  :o)

In U.S. v. Morgan, No. 1:18-CR-00108 EAW (W.D.N.Y. March 6, 2020), New York District Judge Elizabeth A. Wolford denied the defendant’s Motion for Return of Property Under Federal Rule of Criminal Procedure 41(g), ruling that “[t]he government’s evidentiary interest in the [defendant’s] iPhone outweighs Defendant’s interest in its return, at least at this stage of the proceedings”.

Case Background

In this case involving a Superseding Indictment alleging conspiracy to commit wire fraud and bank fraud served on this defendant on May 21. 2019, a search warrant over a year earlier was issued for Morgan Management, LLC, which included search and seizure of “multiple servers, computers or storage media … including but not limited to … devices … associated with … Robert Morgan.”  Later the same month that the search warrant was issued, a 62-count indictment was returned against other defendants, but Robert Morgan was not initially named in the indictment.

Nonetheless, sometime in May of 2018, the government started to try to crack the defendant’s iPhone’s passcode, using a device called “GrayKey”, which uses “brute force” to try and access the iPhone, a process by which a computer program enters potential passcodes seriatim until the correct passcode is revealed.  A six-digit passcode yields 1,000,000 potential passcode combinations, but the iPhone’s hardware only allows two or three passcode attempts each hour.  Even though this defendant wasn’t charged until a year later, GrayKey’s “painstaking” efforts to unlock the iPhone continued, with “a mere 960,526 possible passcodes” remaining as of January 9, 2020.  As a result, on January 2, 2020, the defendant filed a Motion for Return of Property Under Federal Rule of Criminal Procedure 41(g).

While the government argued that it was the defendant’s burden to show that either the seizure was illegal or the government’s need for the device as evidence has ended, the defendant argued that regardless of the government’s stated need for the property, it was unreasonable for the government to continue its retention of the iPhone.

Judge’s Ruling

Judge Wolford noted that “Rule 41(g) allows ‘[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property [to] move for the property’s return…. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.’”  But she also noted that “Defendant does not argue that the government’s continued possession of the iPhone and its efforts to access it constitute an untimely seizure. Instead, Defendant argues that his interest in his iPhone and the information contained therein exceeds the government’s interest in the device, and thus, the Court should order its return.”

With that in mind, after a review of the history of Rule 41(g), Judge Wolford stated: “Defendant argues that at its current pace, it may take the government 37 years to successfully unlock the iPhone. The Court agrees that anywhere close to 37 years is an unreasonable time to retain the iPhone. This does not mean, though, that the government should be compelled to return it now. The government suggests that if it is successful, the contents of the iPhone could still be used at trial, regardless of when the contents are eventually accessed. At this stage of the proceedings—with a trial not scheduled to commence until next year…the Court agrees that there is still plenty of time for the government to access the iPhone’s contents. In the context of the current motion, the Court will not resolve whether that may cease to be the case as the trial date approaches. Indeed, the question of specifically how long the government can retain the device is not before this Court. There may very well come a point where the government’s retention of the iPhone is unreasonable—and that may be a time when the government continues to maintain that it needs the iPhone as evidence—but that date has not yet occurred.”  As a result, Judge Wolford denied the defendant’s motion.

So, what do you think?  How long can the government be allowed to retain a device to attempt to crack the password in a criminal litigation case?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Here’s another interesting article about this case from David Horrigan of Relativity on Legaltech® News!

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Here’s an ACEDS Houston CLE Event You Can Attend No Matter Where You Are: eDiscovery Education

In a normal non-COVID-19 (coronavirus) world, our chapter events for the Association of Certified E-Discovery Specialists (ACEDS) Houston chapter would in-person local events and probably limited to legal professionals in Houston and surrounding areas.  But, we must adapt in the current (hopefully temporary) world of “social distancing”.  As a result, here’s a CLE event that you can “attend”, even if you’re nowhere near Houston.

One week from today, on Thursday, April 2 at noon CST (1:00pm EST, 10:00am PST), ACEDS will host the webinar Mining for Valuable Data – Collection Fundamentals.  In this one-hour webcast that’s CLE-approved for 0.75 hours in Texas, Paul Price, Vice President of Forensic Services at Xact Data Discovery will discuss collection fundamentals including: the scope of collection; how data is stored and recovered; the importance of metadata, forensic soundness and chain of custody; the risks of self-collection and other available collection approaches; and major source categories to be considered.

Let’s face it: While the left side of the EDRM (Identify, Preserve, and Collect) may be the least expensive part of the eDiscovery process, it can hold the biggest value because improper collections can result in having to repeat the entire process increasing the client’s total cost; sanctions can occur if the data is no longer available; and unnecessary legal battles may ensue to defend the decisions that were made at the beginning of the case.  If you don’t have the time to do it right, when are you going to have the time to do it over?

You’re probably asking: If the webinar is CLE approved for 0.75 hours in Texas, how does that apply to me if I’m NOT in Texas?  Well, based on CloudNine’s experience in hosting our own webcasts, we know that several states (and even one territory) offer reciprocal credit for approved CLE webinars in other states.  Reciprocal credit may also be available in these states (and territory): Alaska, Arizona, Arkansas, California, Colorado, Florida, Hawaii, Maine, Montana, New Jersey, New York, North Dakota, Oregon, Puerto Rico, Rhode Island, Virginia, Washington, West Virginia and Wisconsin.  And, these are the states we have confirmed will provide CLE credit – other states may as well (check with your local state bar on requirements in your state).

To get CLE credit in Texas after the webinar, email your name and bar number to me at my email address – daustin@cloudnine.com – and (once I confirm your attendance for the full 0.75 hours) I can record your credit for you.  To get credit in another state, email me and (after confirming credit) I can send you a certificate so that you can pursue credit in your state.  What could be easier than that?!?

BTW, don’t forget CloudNine’s next webcast – Winning the Battle on Discovery Form of Production – with Tom O’Connor and me on Thursday, April 2 at noon CST (1:00pm EST, 10:00am PST).  That’s nearly 2 hours of new CLE courses in less than a week!

So, what do you think?  Are you looking for opportunities to obtain CLE credit during the pandemic?  Well, here’s one chance to do so!  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Even the Coronavirus Can’t Stop Legal Tech Companies From Pushing Forward: eDiscovery Trends

Sure, the COVID-19 (coronavirus) is disrupting many things from eDiscovery industry events to web teleconferencing solutions to even Federal and State court dockets.  But, at least according to one article, legal tech “vendors” are still chugging along.

According to Bloomberg Law (Legal Tech Companies Push Forward Despite Virus Disruption, written by Sam Skolnik), legal tech vendors say they are unbowed in the wake of the coronavirus outbreak, and are so far keeping new product releases on schedule despite volatile markets and disruptions in how their law firm and corporate clients operate.

Even though some vendor executives recognize that a prolonged national emergency spurred by the virus could cause legal industry clients to reassess their need for new products and services, many in legal tech—especially larger, well-established companies—say disruptions to the pipeline to develop and implement legal technology caused by COVID-19 seem far away.  Examples:

  • Technology and legal services company UnitedLex isn’t delaying any product or service rollout as a result of the virus, CEO Dan Reed told Bloomberg Law in a statement. Digital is in our DNA and we are designed as an organization to deliver even with a primarily remote-first work model,” said Reed. “We continue to monitor and assess the situation and can wholeheartedly speak to our clients’ ongoing reliable access to business applications and information.”
  • Veritone, which offers artificial intelligence-enabled eDiscovery and transcription and translation services, said they haven’t seen a drop-off in work since the coronavirus hit. They say this is reflected by the new contracts they’ve signed with police department and advertising agency clients, as well as one legal client in a transcription matter.
  • For Ben Levi, co-founder and chief operating officer of InCloudCounsel, a legal tech provider, the outbreak has been “unprecedented” in some ways. Yet the pandemic hasn’t been as disruptive to his business as it could have been, he said, citing a strong company balance sheet and the fact that his team was already set up to work from home.  “We’re well-positioned to ride this out,” he said.
  • Orrick Herrington & Sutcliffe is still poised to roll out the next version of the Orrick Dashboard on May 1, according to partner Don Keller. The tool would enable the firm and its tech company clients to access clients’ corporate legal information and to collaborate.

CloudNine is also continuing to push forward with new software releases as well.  On Monday, we rolled out the latest release (version 1.08.05) of our Concordance Desktop product, which focuses on a brand-new document viewer (the first new image viewer in many years!) and related production and printing functions.  If you’re a Concordance Desktop client, you can download the new release here.

So, at least one thing – legal tech “vendors” churning out product releases – hasn’t changed in this very unusual time.

So, what do you think?  Has the COVID-19 pandemic changed how you use and purchase legal tech software?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Court Observes “Timing is Everything” in Determining When Litigation is Anticipated: eDiscovery Case Law

Yesterday, I noted that COVID-19 is impacting several courts and closing many – at least for now.  But, I also noted that we still have several cases we can cover from earlier this year regarding eDiscovery.  Here’s one.

In Noah’s Wholesale, LLC v. Covington Specialty Ins., No. 19-24845-CIV-COOKE/GOODMAN (S.D. Fla. March 13, 2020), Florida Magistrate Judge Jonathan Goodman ruled that the defendant “anticipated litigation approximately midway between the two extreme positions urged by the clients” after reviewing in camera the filed-under-seal documents for which the defendant asserted work product protection.

Case Background

In this theft-of-business-property insurance claim case, each party had a significantly different view about the time of when the defendant first anticipated litigation. The defendant contended it anticipated litigation immediately upon receipt of the plaintiff’s notice of its loss, while the plaintiff contended that the defendant did not anticipate litigation until the lawsuit was filed, more than a year after the first loss notice was provided.

At the discovery hearing on the defendant’s claim of work product protection over the insurance claim file at issue, defense counsel presented several potential dates (starting with the earliest in time) that could conceivably be the date when the work product doctrine was to be established for the plaintiff’s claim file and filed an affidavit of the litigation specialist assigned to the subject claim, in support of its various potential dates for beginning the work product protection over the claim file.  Judge Goodman, while noting that her affidavit does not explain what legal training, if any, she has received to be a “litigation specialist”, then proceeded to review filed-under-seal documents in camera to evaluate against those dates.

Judge’s Ruling

Judge Goodman began his order by stating: “’Timing,’ they say, ‘is everything’”, noting that “The ubiquitous ‘they’ may well be correct about that timing thing when it concerns the issue of when a party anticipated litigation under the work product doctrine.”

With regard to the dates proposed by the defendant, Judge Goodman ruled as follows:

  • June 27, 2017, because it was the date that the sole owner of Noah’s Wholesale recorded his statement about the loss and provided a document indicating that the alarm system was not activated on the date of the loss: Judge Goodman stated: “The Undersigned disagrees with Covington’s argument that work product protection over the claim file starts on June 27, 2017, because there was still uncertainty about whether litigation would ensue at this point. By Covington’s own actions, such as sending a reservation of rights letter in August 2017 (asking Noah’s Wholesale for more information/documentation of the loss), it is evident that Covington was still in ‘information gathering mode’ and not certain about litigation.”
  • August 3, 2017, because it was the date when “Covington’s assigned claims administrator sent the insured correspondence . . . indicating it was investigating the claim under a reservation of rights, and specifically requested certain information from the insured”: Judge Goodman stated: “the Undersigned similarly disagrees with beginning the work product protection on the date of the ROR letter because Covington was still investigating Noah’s Wholesale’s claim and had not declined or otherwise reached a final decision on coverage of the claim.”
  • June 6, 2018, because it was the date when “Covington re-opened the subject claim after it received correspondence from Joshua Widlansky, Esq., advising Covington that the insured had retained the law firm of Padula Bennardo Levine in relation to the subject claim.”: Judge Goodman stated: “After reviewing the claim file in camera, the Undersigned agrees with Covington that June 6, 2018, when Noah’s Wholesale informed Covington that it retained counsel in relation to the subject claim, is the date when the work product protection should begin over the claim file. The in camera inspection shows that Covington responded to the letter as if litigation were imminent, and created claim file documents from that point forward with the ‘prospect of litigation [as] the primary motiving purpose.’…Discussing the need for outside coverage counsel (after learning that the insured retained counsel) is a tangible illustration of a view that litigation was anticipated.”

So, what do you think?  Is the notification that the party has retained an attorney a good milestone to use for reasonable anticipation of litigation?  Or is there a better one prior to the case actually being filed?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Here is How Covid-19 is Impacting the Courts: eDiscovery Trends

I promise that every post for the next several weeks won’t be about the Covid-19 (Coronavirus) pandemic.  But, this is one more trend worth noting.  To no one’s surprise, many Federal and State courts are also closing and delaying trials because of COVID-19.

According to ABA Journal (A slew of federal and state courts suspend trials or close for coronavirus threat, written by Debra Cassens Weiss), more than 25 federal district courts are pausing jury trials, following a trend that is still gaining ground in state courts.

Several federal appellate and trial-level courts are also barring people who don’t have official court business from entering courthouses. Some are asking pro se litigants with documents to leave them in drop boxes rather than enter the clerk’s office.

One federal courthouse in Rome, Georgia, was closed by court order last Tuesday after a court security officer was hospitalized with flu-like symptoms, according to Courthouse News Service. The guard had worked the week before he was hospitalized even though he was feeling ill. Results of a COVID-19 test were pending as of Wednesday, still no news reported as of yesterday.

In California’s Northern District, all four federal courthouses were closed to the public, the first mass closing of federal courthouses since the judiciary began its response to the coronavirus threat.

Dozens of states are also pausing trials statewide or restricting court visitors, according to the National Center for State Courts, which is keeping a tally. The organization reported last Tuesday that seven additional states (Arizona, Colorado, Hawaii, Louisiana, Maryland, Missouri and Virginia) had issued or expanded orders pausing jury trials or restricting court functions in just the last 18 hours. Other states pausing many jury trials include New York, New Jersey, Florida and Massachusetts.

Federal courts that have suspended jury trials include the U.S. District Courts for the Northern District of California, the Southern District of California, the Central District of California, the Eastern District of California, the District of Colorado, the District of Connecticut, the Northern District of Illinois (civil trials suspended), the Southern District of Indiana, the Northern District of Iowa, the Eastern District of Louisiana, the Middle District of Louisiana, the Western District of Louisiana, the District of Maryland, the District of Massachusetts, the District of Minnesota, the Southern District of Mississippi, the District of Nebraska, the District of New Hampshire, the Eastern District of Pennsylvania, the Western District of Pennsylvania, the District of Puerto Rico, the Eastern District of Tennessee, the Northern District of Texas, the Southern District of Texas, the Eastern District of Virginia, the Western District of Washington, the Southern District of West Virginia, the Eastern District of Wisconsin and the District of Columbia.

COVID-19 has even delayed the Robert Durst murder trial.

The Administrative Office of U.S. Courts is keeping track of the orders in this chart.

Even though we may be seeing less case law for a while, there are still several eDiscovery related case law opinions and orders available for coverage since the start of 2020 – 469 in eDiscovery Assistant so far this year.  So, we still have plenty of case law to cover during the interim period.

Stay healthy out there!

So, what do you think?  How have court closures and trial delays affected your practice?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Web Teleconferencing Solutions Experiencing Challenges During COVID-19 Crisis: eDiscovery Logistics

We’re all adjusting to our “new normal” of Work From Home (WFH) during the COVID-19 (Coronavirus) crisis.  But, working with increased demands on teleconferencing solutions may make us want to say “WTF” during our WFH experience these days.  Is there anybody out there?

As reported by The Register (Zoom goes boom, Teams tears at seams: Technology stumbles at the first hurdle for this homeworking malarkey, written by Kieren McCarthy – hat tip to Sharon Nelson of the excellent Ride the Lightning blog), demand for services like Zoom’s conferencing software and Microsoft’s Teams outstripped capacity and outages started occurring at 9am ET on Monday, per the article.

Zoom candidly reported that its software has “degraded performance” and its phone service had a “partial outage.”  For obvious reasons, all remote working companies are scrambling to deal with the sudden flood of users. Zoom has updated its audio-conferencing system in the background in order to allow people running the meeting the ability to change dial-in options – a sign that people who usually do not use its software are having to be guided through it by manager and meeting organizers.

Of course, Zoom has been on a media blitz recently touting their low latency, network optimization, decision to remove a 40-minute limit on free accounts and even offering free video conferencing for schools.  Whoops.  Though the free videoconferencing was a nice offering, so kudos to them for that.  CloudNine uses RingCentral (which is built on Zoom) and I have noticed a couple of issues dialing into meetings this week, but was able to circumvent them by using computer audio instead.  So, there are workarounds; however, I have heard some people have had issues with the computer audio option as well.

Microsoft, which has been heavily promoting its Teams conferencing service recently, has also had issues, which a string of outages. The service was listed by Microsoft as suffering “degradation.”

Needless to say, the COVID-19 virus crisis of 2020 is giving these teleconference platform providers a chance to stress test their systems like never before.

As you may recall, I covered a few eDiscovery related cancellations, postponements and conversions (to virtual events) in Tuesday’s post. Of course, Rob Robinson’s excellent Complex Discovery blog has a much more comprehensive listing of cancellations, postponements and conversions here, which (sadly) includes the Corporate Legal Operations Consortium (CLOC) show in May as well as events for The Sedona Conference and the Masters Conference.

Stay healthy out there!

So, what do you think?  Are you experiencing any challenges during this WFH time for so many?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Metro-Goldwyn-Mayer (MGM)

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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