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Doug Austin

Does This Scare You? – eDiscovery Horrors!

Today is Halloween.  While we could try to “scare” you with the traditional “frights”, we’re an eDiscovery blog, so every year we try to “scare” you in a different way instead.  Does this scare you?

The defendant had been previously sanctioned $500,000 ($475,000 to the plaintiff and $25,000 to the court) and held in contempt of court by the magistrate judge for spoliation, who also recommended an adverse inference instruction be issued at trial.  The defendant appealed to the district court, where Minnesota District Judge John Tunheim increased the award to the plaintiff to $600,000.  Oops!

What about this?

Even though the litigation hold letter from April 2008 was sent to the primary custodians, at least one principal was determined to have actively deleted relevant emails. Additionally, the plaintiffs made no effort to suspend the automatic destruction policy of emails, so emails that were deleted could not be recovered.  Ultimately, the court found that 9 of 14 key custodians had deleted relevant documents. After the defendants raised its spoliation concerns with the court, the plaintiffs continued to delete relevant information, including decommissioning and discarding an email server without preserving any of the relevant ESI.  As a result, the New York Supreme Court imposed the severest of sanctions against the plaintiffs for spoliation of evidence – dismissal of their $20 million case.

Or this?

For most organizations, information volume doubles every 18-24 months and 90% of the data in the world has been created in the last two years. In a typical company in 2011, storing that data consumed about 10% of the IT budget. At a growth rate of 40% (even as storage unit costs decline), storing this data will consume over 20% of the typical IT budget by 2014.

How about this?

There “was stunned silence by all attorneys in the court room after that order. It looks like neither side saw it coming.”

Or maybe this?

If you have deleted any of your photos from Facebook in the past three years, you may be surprised to find that they are probably still on the company’s servers.

Scary, huh?  If the possibility of sanctions, exponential data growth and judges ordering parties to perform predictive coding keep you awake at night, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Then again, if the expense, difficulty and risk of processing and loading up to 100 GB of data into an eDiscovery review application that you’ve never used before terrifies you, maybe you should check this out.

Of course, if you seriously want to get into the spirit of Halloween, click here.  This will really terrify you!

Those of you who are really mortified that the next post in Jane Gennarelli’s “Litigation 101” series won’t run this week, fear not – it will run tomorrow.

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

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.

Russell Taber: eDiscovery in Tennessee – eDiscovery Trends

We spend a lot of time discussing and referencing the Federal Rules of Civil Procedure, especially the changes adopted in 2006 to address handling of electronically stored information (ESI).  But, not all cases are Federal jurisdiction cases.  Many are state cases and each state (well, most of them anyway) have their own rules regarding eDiscovery.  One of those states is Tennessee.  Now, for those who practice law in Tennessee and need to address eDiscovery issues, there is a new book available to provide guidance in addressing those issues.

Electronic Discovery in Tennessee: Rules, Case Law and Distinctions was written by W. Russell Taber III.  Russell is an attorney with Riley Warnock & Jacobson, PLC, in Nashville, Tennessee.  His practice focuses on business litigation.  He is a member of The Sedona Conference® Working Group 1 and is a founding member of The Prometheus Project (The Nashville Chapter of Friends of EDiscovery).  Russell has a J.D. from Vanderbilt Law School and a B.A. from Georgetown University.  I recently interviewed Russell regarding the book and asked him several questions about the book and about eDiscovery in Tennessee in general.

Why did you decide to write the book and what are you hoping for readers to learn from reading it?

First of all, thank you for the eDiscovery Daily Blog.  I’ve been a subscriber for some time and have benefitted from its insights.  Thank you also for taking the time for this interview.

I wrote the book as a resource for Tennessee attorneys and legal professionals to use in confronting eDiscovery issues.  It begins with the premise: “The era of paper discovery in Tennessee is over.”  Though perhaps an unimaginative allusion to a famous political line during an election year, I believe the statement is true.   Virtually all information is created electronically.  EDiscovery simply cannot be ignored in Tennessee state or Federal cases, large or small.  Even so, eDiscovery can be very challenging, and the stakes can be high.  Since the most widely discussed cases in the field and at CLE’s often stem from large metropolitan centers in other states, it has been an open question whether that law does or should apply in Tennessee.   Before my book, there was no comprehensive resource that sought to address this issue, which I think is an important consideration in much Tennessee litigation.

As I understand it, the Tennessee Rules of Civil Procedure were amended to address discovery of ESI in 2009?  How do the Tennessee rules compare and contrast to the Federal Rules adopted in 2006?

That’s right.   The 2009 amendments to the Tennessee Rules were patterned largely after the “new” 2006 amendments to the Federal Rules but differ in some respects.   For instance, unlike the Federal Rules, the Tennessee Rules do not have a “meet and confer” requirement but do encourage parties to meet and confer if ESI is likely to be at issue.  The verdict is still out on what impact this distinction has in practice and on how parties cooperate on eDiscovery.

Another distinction is a rule that compliments the Tennessee state equivalent of Fed. R. Civ. P. 26(b)(2)(C)(iii) and perhaps places additional emphasis on proportionality in Tennessee state court.  Under the Tennessee rule, a judge first determines whether the ESI is subject to production.  If so, the judge then weighs the benefits to the requesting party against the burden and expense of the discovery for the responding party, considering thirteen non-exclusive factors.

Are there a couple of notable Tennessee cases that you can mention that were impacted by the Tennessee rules or by eDiscovery in general?

Yes.  While the degree of culpability that should be required to impose spoliation sanctions has been debated nationally, Tennessee state courts generally have not awarded spoliation sanctions absent destruction of evidence for an improper purpose.  In Bellsouth Advertising & Publishing Corp. v. Abebe, the Tennessee Court of Appeals applied this general rule in declining to impose sanctions for a party’s destruction of original documentation pursuant to its document retention practices.

Another notable case is CNX Gas Co., LLC v. Miller Petroleum, Inc.  The Tennessee Court of Appeals shifted all the costs (including attorneys’ fees) of collecting, reviewing and producing certain ESI to the requesting party.  The court reasoned that the requests for production, which sought ESI “with metadata,” posed an “undue burden and hardship” on the responding party.

Are there any plans to amend Tennessee rules for eDiscovery in the near future?  What do you expect to see in the eDiscovery landscape within the state over the next few years?

I’m not aware of any plans to amend the Tennessee rules for eDiscovery.  A practitioner in Tennessee can be subject to four different sets of eDiscovery rules depending on whether the case is pending in Tennessee state court or in one of the three Federal judicial districts (two of which have somewhat differing local default eDiscovery rules).  I think there is a need for more uniformity in the eDiscovery rules in Tennessee.

We recently started a local eDiscovery group in Nashville (called The Prometheus Project) that is affiliated with Friends of eDiscovery.  Our initial meeting last month generated quite a bit of enthusiasm and attracted over 40 attendees.  These local groups seem to be emerging throughout the country, and I’m hopeful this trend will spread to other cities in Tennessee.

For more information about the book, including the link on Amazon.com to purchase it, click here.

Thanks, Russell, 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 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.

Both Sides Instructed to Use Predictive Coding or Show Cause Why Not – eDiscovery Case Law

As reported in Ralph Losey’s e-Discovery Team® blog, Vice Chancellor J. Travis Laster in Delaware Chancery Court – in EORHB, Inc., et al v. HOA Holdings, LLC, C.A. No. 7409-VCL (Del. Ch. Oct. 15, 2012) – has issued a “surprise” bench order requiring both sides to use predictive coding and to use the same vendor.

As Ralph notes, this “appears to be the first time a judge has required both sides of a dispute to use predictive coding when neither has asked for it. It may also be the first time a judge has ordered parties to use the same vendor.”  Vice Chancellor Laster’s instruction was as follows:

“This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding.  I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.

I would like you all to talk about a single discovery provider that could be used to warehouse both sides’ documents to be your single vendor.  Pick one of these wonderful discovery super powers that is able to maintain the integrity of both side’s documents and insure that no one can access the other side’s information.  If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you.

One thing I don’t want to do – one of the nice things about most of these situations is once people get to the indemnification realm, particularly if you get the business guys involved, they have some interest in working out a number and moving on.  The problem is that these types of indemnification claims can generate a huge amount of documents.  That’s why I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use.”

Ralph notes that there “was stunned silence by all attorneys in the court room after that order. It looks like neither side saw it coming.”  It will be interesting to see if either, or both party, proceeds to object and attempt to “show cause” as to why they shouldn’t use predictive coding.

So, what do you think?  Is this an isolated case or the start of a trend?  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.

Proportionality Rules! (and other proportionality sources) – eDiscovery Best Practices

I found this nice summary of Federal Rules of Civil Procedure and other sources that address proportionality and cooperation in eDiscovery from the Baker Hostetler blog, Discovery Advocate, written by Gil Keteltas entitled Advocating Proportionality? Start with the Rules!  Here are the highlights.

As the author notes, Rules 1, 26 and 37 each provide verbiage addressing proportionality, as follows:

  • Rule 1 states that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”
  • In Rule 26(a)(1) disclosures, a party must describe  by category and location all electronically stored information in the party’s possession, custody or control  “that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.”
  • Rule 26(f) mandates that the parties confer and discuss “any issues about preserving discoverable information; and develop a proposed discovery plan” that indicates the “parties’ views and proposals” concerning, inter alia, issues relating to the disclosure or discovery of ESI, form of production and assertions of privilege.
  • Rule 26(g) requires certification, based on a reasonable inquiry, that Rule 26(a) disclosures were complete and that discovery requests, responses and objections are proper, necessary and reasonable given the law, nature and stage of the case.
  • Rule 37(f) authorizes sanctions for failure to make disclosures or cooperate in discovery, including for failing “to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f).”

The author also recommends two publications from the The Sedona Conference®: Its Cooperation Proclamation and its Commentary on Proportionality (previously covered on this blog here and here), as well as this proportionality test white paper from the American Bar Association.  If you want case law dealing with proportionality, take a look here, here, here, here and here.  And, that’s just this year!

With 90% of the data in the world having been created in the last two years, managing eDiscovery of all that data continues to get more and more expensive.  Key to keeping those costs in check is the ability to promote proportionality, especially through the Rule 26(f) meet and confer with opposing counsel, and with the court (especially when the parties can’t agree on conducting eDiscovery more cost effectively).  The sources listed in this article provide excellent ammunition to advocate proportionality in eDiscovery with opposing counsel as well as with the court.

So, what do you think?  Have you disputed eDiscovery scope with opposing counsel in your cases?   If so, how have you addressed those disputes?  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.

EDRM Announces Several Updates at Mid-Year Meeting – eDiscovery Trends

Last week, the Electronic Discovery Reference Model (EDRM) conducted its mid-year meeting to enable the working groups to meet and further accomplishments in each of the teams for the year.  Having attended several of these meetings in the past, I’ve always found them to usually yield significant progress within the working groups, as well as providing a great opportunity for eDiscovery professionals to get together and talk shop.  Based on the results of the meeting, EDRM issued an announcement with updates from several of their more active projects.

Here are the updates:

  • Data Set: The Data Set project announced the launch of its new file upload utility. “The upload utility will allow us to develop a modern data set that more accurately represents the type of files that are commonly encountered in data processing,” said Eric Robi of Elluma Discovery, co-chair of the project with Michael Lappin of NUIX. The Data Set project also announced a soon-to-be-published “million file dataset” and an upcoming redacted version of the Enron data set, previously described on this blog here.
  • Information Governance Reference Model (IGRM): The IGRM team announced that its updated model (IGRM v3) was recently published and presented at ARMA International’s 57th Annual Conference & Expo and the IAPP Privacy Academy 2012. As discussed on this blog just a couple of weeks ago, the updated version adds privacy and security as key stakeholders in the model.
  • Jobs: The Jobs project continued development of the EDRM RACI (responsible, accountable, consulted, informed) Matrix, a tool designed to help hiring managers better understand the responsibilities associated with common e-discovery roles. RACI maps responsibilities to the EDRM framework so e-discovery duties associated can be assigned to the appropriate parties.
  • Metrics: The Metrics project team refined the EDRM Metrics database, an anonymous set of e-discovery processing metrics derived from actual matters, which will include a CSV upload function to make it easier for vendors and law firms to anonymously submit data to the system.  Having worked on the early stages of this project, my “hats off” to the team for the additional accomplishments.
  • Search: The Search group announced that its EDRM Computer Assisted Review Reference Model (CARRM) soon will be available for public comment. The goal of CARRM is to demystify the predictive coding process and to allow for a common communication platform between vendors and end-users at each phase of the CAR process and it will be interesting to see the document that emerges from these efforts.

EDRM meets in person twice a year, in May for the annual meeting and October for the mid-year meeting, with regular working group phone calls scheduled throughout the year to keep the projects progressing.  The next in person meeting is next year’s annual meeting, currently scheduled for May 7 thru 9, 2013.  For more information about EDRM, click here.  For information on joining EDRM, including fee information for participation, click here.

So, what do you think?  Have you been following the activity of EDRM?  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.

Government Document Productions Can Be Like Water Torture – eDiscovery Case Law

In Botell v. United States, 2012 U.S. Dist. (E.D. Cal. Sept. 18, 2012), Magistrate Judge Gregory Hollows noted that the US Government’s “document production performance in these proceedings has been akin to a drop-by-drop water torture” and ordered a preclusion order prohibiting the US Government “from presenting evidence in its case that had been requested by plaintiffs in the Requests for Production, but which has not been produced” as of the date of the order.  The US was also still required to produce the documents, whether they planned to use them or not.  Judge Hollows also noted that the “Plaintiff has not waived any motion to seek further sanctions regarding non-production of documents, or spoliation of documents.”

In this wrongful death and personal injury action at Lassen Volcanic National Park when a mortared rock wall gave way killing one child and injuring another, the US Government produced over 7,000 pages of documents, yet, it was noted that “there is a glaring lack of production of emails from defendant’s agents and employees” with emails having only been produced from one custodian.  As five other custodians were referenced in the produced emails, the plaintiffs contended that emails should have been produced from them as well.  With regard to the back up of emails, one of the defendant declarations described the backup policy as follows: “[b]ack-up emails are retained for 30 days only, unless they are subject to a litigation hold notice or pertain to the BP Gulf Oil spill.”

Judge Hollows ordered the defendants to provide a declaration describing “searches conducted to locate physical and electronic copies of emails” responsive to production requests, noting the declaration “shall state the steps taken to locate these emails, whether any such emails exist, and if not, a definitive statement that they no longer exist. If further responsive documents are located, they shall be produced at the time declarations are filed.”

Summarizing the production issue in his order, Judge Hollows noted as follows:

“At this juncture, the United States has purportedly been looking for documents for months, yet the undersigned, to the date of the hearing, does not have confidence that an organized, thorough search has been performed. Rather, defendant’s document production performance in these proceedings has been akin to a drop-by-drop water torture. At some point, plaintiff must be protected from the United States’ further belated production of pertinent documents.”

As a result, Judge Hollows issued the preclusion order, with the possibility of more sanctions to come.

So, what do you think?  Was the ruling harsh enough?  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.

No Bates Numbers in a Native Production? Get Over It! – eDiscovery Best Practices

Last week, we discussed the benefits of requesting document productions in native format, including the ability to use Early Data Assessment/FirstPass Review applications to analyze your opponents produced data and metadata, using capabilities like email analytics and message thread analysis (where missing emails in threads can be identified), synonym searching, fuzzy searching and domain categorization.  If you don’t understand the benefits of receiving the underlying metadata, try reviewing an image of an Excel spreadsheet and see if you can understand how the numbers were calculated without the underlying formulas.  Not so easy, is it?

However, one objection that attorneys provide against producing documents in native format is that they’re not conducive to Bates labeling.  Some native file types, such as Excel files, are not stored in a typical paginated, document-oriented format, so it is difficult or even impossible determine the number of pages for each file.  Other file types vary the number of pages and placement of text on pages based on the document styles applied.  For example, Word uses document styles based on the fonts installed on the workstation to display the content of the Word document; however, if the chosen font is not available when the document is viewed on another workstation, Word will substitute with another font and style that can change the formatting and even which page content appears.  Since attorneys are so used to having a Bates stamp on each page of a document, many are still known to produce (and request production) in an image format, adding costs unnecessarily.  Would those same attorneys print out every email in their Inbox before reading them?

However, most courts today accept a file-level “Bates” or Unique Production Identifier (UPI) where each file is named with a prefix and a sequential number.  These numbers look just like Bates numbers, except they’re not stamped in the file itself; instead, they are used as the file name.  These productions are usually accompanied by a data file, containing metadata for loading into a review tool, which includes the original file name and path of each file being produced.

So, how do you get around the issue of referencing individual page numbers for presentation at deposition or trial?  Those files can still be converted to image (or printed) and a number applied for presentation.  It’s common to simply use the Bates number as the prefix, followed by a sequential number, so page 6 of the 45th file in the production could be stamped like this: PROD000045-00006.  This enables you to tie back to the production, yet only convert to image those files that need to be presented.

So, what do you think?  How do you handle production numbering in native productions?   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.

Avoiding the Redaction “Epic Fail” – eDiscovery Best Practices

On the surface, it may seem easy enough to redact a document during eDiscovery review to obscure confidential or privileged information.  All you need to do is draw a black box over the affected text, right?  Not so fast, my friend.  There’s a lot more to consider in order to ensure that you don’t inadvertently produce information that was intended to be redacted.  Here are a few redaction “epic fails” and how to avoid them.

Failure to “Burn” the Redaction into the Image

If the redaction isn’t “burned” into the image so that it cannot be removed, the redacted data can still be viewed (as these unfortunate folks found out).  Especially when your images are Adobe Acrobat PDF files, the most common mistake is to redact by obscuring the text by drawing a black box over the text or images you want redacted.  A simple “cut and paste” can remove the black box, revealing the redacted text.  Acrobat provides a redaction tool (for those editing the PDF there) to properly apply a redaction – it’s best to save the file to a new name after the redaction has been applied.

If you’re using a review application to manage the review, the application should ensure a “burned in” redaction for anything exported or printed, regardless of whether it lets you look at the redacted data within the application itself.  For example, CloudNine Discovery’s review application, OnDemand®, provides a tool to enable the reviewer to draw a gray box over the text to be redacted so that text can still be viewed within the application.  However, if the file is exported or printed, that box gets “burned” in as a black box to completely obscure the redacted text.

Failing to Update Corresponding Text Files to Remove Redacted Text

Even if the image is handled properly, you can still disclose redacted text if you don’t make sure that the corresponding text file, whether extracted from the native file or generated via Optical Character Recognition (OCR), isn’t updated to remove the redacted text.  If you don’t update the corresponding text files, you’re allowing redacted text to slip through the production “back door”.  This happens more often than you might think.

Producing Un-Redacted Native Files

If you’re producing native files, you’ve hopefully discussed with opposing counsel how to handle native files that require redaction.  Typically, the approach is to convert those to an image format and redact the image.  Sometimes the parties agree to “redact” the native files themselves and produce those.  If so, as is the case with Adobe PDF files, there’s a right way and wrong way to redact native files.  Changing the text to white or the background to match the text color is not the same as redacting the text.  All you have to do is to revert back to the original formatting or simply highlight the affected area to see the redacted text.  Instead, you’ll want to agree on a procedure where the text is deleted or replaced with an equal amount of meaningless content (e.g., all “X”s) to preserve text flow and pagination (make sure track changes is off before redacting).  You may even want to agree to copy the entire content of a redacted document to a new file (to remove residual document composition information that might remain).  To see what I “redacted” up above, highlight it with your cursor.  🙂

Failing to Redact Metadata

You may redact content on the document that you produce separately as metadata, via a load or data file.  Failing to check the produced metadata for redacted documents could enable redacted data to slip through.  So, don’t forget to check and remove any sensitive data here, as well.

Quality Control (QC) Check before Producing

Generally, when producing documents with redactions, you should have a checklist that ensures that image redactions are “burned” in, that redacted native files (if produced natively) are properly redacted, and that corresponding text files and metadata have been checked to ensure that redacted data has been removed from those as well.  Otherwise, your production of redacted materials can wind up as an “epic fail”.

So, what do you think?  How do you handle redactions within your productions?  Do you have a process to QC check redactions before producing?  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.

Cloning of Computer Files: When There’s a Will, There’s a Way – eDiscovery Case Law

In Matter of Tilimbo, No. 329/M-2007, 2012 N.Y. Misc. (Surr. Ct., Bronx Cnty. Aug. 22, 2012), a court held it was permissible to order cloning of computer files where doing so did not place an unreasonable burden on a nonparty, appropriate steps were taken to protect any privileged information, and the nonparty had not previously produced the requested information in hard copy.

In this claim based on a will contest, the plaintiffs moved for an order permitting their computer forensic expert to examine the personal computer hard drive of a nonparty witness, the deceased’s attorney Patrick Wynne, limited to finding and reviewing documents related to Rose Tilimbo, her will, as well as a deed transfer from her to Salvatore Tilimbo that formed the basis of the will contest. Wynne objected on the basis that he had already, at the court’s direction, been deposed on the subject and “provided an affirmation stating that he conducted the requisite diligent search of his ‘computer files and any other [additional] relevant files’ and did not find responsive documents or computer files.” He argued that “a balancing of the sanctity of the attorney-client privilege against the scope of permissible discovery warrant[ed] the denial of the motion.”

Noting that ESI of a nonparty is discoverable, the court held that so long as it did not place an unreasonable burden on Wynne, a solo practitioner, the examination and cloning of Wynne’s computer was permissible. Although Wynne had produced in hard copy all of the documents he said he possessed, the court pointed out that such disclosures did not prevent the ESI itself from being sought. In addition, Wynne had not been able to produce any documents related to the deed transfer at issue, and any such documents that existed would clearly be material and relevant to the case. Therefore, the court offered the following parameters for the cloning:

“The court finds that the cloning would not place an unreasonable burden upon Wynne if all of the computers can be cloned at his office in four hours or less on a date and at a time that he selects, which may include in whole or in part a time after normal business hours. Alternatively, the cloning will be allowed outside of Wynne’s office if it can be done by removing the computer(s) on a Saturday at any time selected by Wynne and returned to his office by Monday between 8:30 and 9:00 a.m. If Wynne prefers, the computer(s) may be removed from his office on any other day, provided the computer(s) are returned to his office within 24 hours. If the cloning is to be done outside of Wynne’s office and more than one computer is to be cloned, then at Wynne’s option, only one computer may be removed from his office at a time. In the event that the cloning can be accomplished within the time allocated herein either at Wynne’s office or by removal of the computer(s), Wynne shall have the right to select whether or not he wants the cloning to be done at his office. In the event that the cloning requested by the movants cannot be performed within the time frame provided herein, the court finds that the disruption to Wynn’s practice of law outweighs the benefits that the movants might obtain from the information provided by the cloning. Furthermore, should a computer be removed from Wynne’s office and not returned within the time provided herein, the movants shall pay Wynne $200 for each hour or part thereof that the return is delayed.”

In addition, the forensic analysts were limited to locating documents likely to lead to discoverable evidence related to the decedent and were given specific instructions on what to do with any unrelated documents that were accidentally uncovered.

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

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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.

eDiscovery Training Valued More Than eDiscovery Certification – eDiscovery Trends

According to a survey conducted by eDJ Group and reported on by Barry Murphy within eDiscovery Journal (eDiscovery Education? Yes! eDiscovery Certification? Maybe…), almost all respondents believe that eDiscovery and education and training are important and three fourths of them believe that good eDiscovery education and training programs exist today.  However, when it comes to the importance of eDiscovery certification programs and whether good programs exist today, slightly more than half of respondents responded favorably to eDiscovery certification programs.

In the story by Murphy, eDiscovery Journal displays graphs representing the results of each of the four questions, as follows:

  • In general, do you believe that good eDiscovery education and training are necessary for the betterment of the industry?: 98.3% of the respondents said yes, 1.7% of the respondents said no.
  • In general, do you believe that good eDiscovery education and training programs exist? : 74.9% of the respondents said yes, 25.1% of the respondents said no.
  • In general, do you believe that good eDiscovery certifications are necessary for the betterment of the industry? : 58.1% of the respondents said yes, 41.9% of the respondents said no.
  • In general, do you believe that good eDiscovery certification programs exist? : 54.8% of the respondents said yes, 45.3% of the respondents said no.

Based on the small footer in each of the graphs, it appears that there were 179 respondents to the four question survey.

Murphy’s eDiscovery Journal also notes several of the organizations that provide eDiscovery education, training and/or certification programs – two of which, the Association of Certified E-Discovery Specialists® (ACEDS™) and The Organization of Legal Professionals (OLP) have had programs featured on this blog.  In addition to the ones that Murphy mentioned, Magellan’s Law Corporation offersDiscovery Project Management classes, conducted by our own Jane Gennarelli.

eDiscovery Certifications Compared to Other Industries

With nearly everybody saying that eDiscovery education and training is important, but less than 60% saying that eDiscovery certification is important, that’s quite a disparity, especially since many training programs offer some sort of recognition for completing the training and passing a test (either a written test or practical exercise, or both) to “certify” knowledge of the material.  In his article, Murphy notes that “eDiscovery is a process made up of many tasks, most of which are performed by various team members.  What I hear from eDiscovery professionals when it comes to certification is that there is simply not enough definition as to what it means to be a certified eDiscovery professional.”

When you look at other industries; however, the certifications are more specialized.  For example, in IT, Microsoft has certification programs for IT Professional (MCITP), Professional Developer (MCPD) and Technology Specialist (MCTS) – in each case, the “MC” stands for “Microsoft Certified”.  From a Project Management standpoint, there is the Project Management Professional (PMP) certification offered by the Project Management Institute (PMI), among others.  These certification programs all appear to be widely accepted.  Maybe specialization is the key to creating eDiscovery certification programs that are widely accepted, with each certification based on the expertise that each team member should possess?

So, what do you think?  Will eDiscovery certification programs ever become widely accepted?  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.