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Jim Gill

Judge’s Ruling on Scope Under Rule 26 Brings a Mixed Bag of Motions Granted and Denied: eDiscovery Case Law

In TMJ Grp., LLC v. IMCMV Holdings, No. 17-4677 (E.D. La. April 6, 2018), Louisiana Magistrate Judge Janis van Meerveld ruled on Motions to Compel by both parties, both of which were granted in part and denied in part.

Case Background

The plaintiff, TMJ, alleged that it had been fraudulently induced to invest in two Margaritaville restaurants (one in the Mall of America and one in New Orleans) by the defendants. An interesting aspect of the discovery motions is TMJ’s allegation that it sought and obtained financing for the investment at issue in this lawsuit from FNBC Bank and that IMCMV altered financial figures in the financial statements so that FNBC would approve the financing after initially rejecting it.

IMCMV’s Motion to Compel

The first item at issue was the defendant’s motion to compel the redacted communications between FNBC and the plaintiff, which were ordered for in-camera review, as well as several depositions given after the discovery deadline. As a result, issues arose around scope of discovery under FRCP Rule 26.

The plaintiff submitted much of their document production right before or on the discovery deadline (around 3,700 pages) and as a result, the defendant said it didn’t have all the relevant documents available for the depositions where some FNBC documents were discussed, and because it did not have sufficient time to review those documents prior to the deposition, they argue that they “had an incomplete picture of the relationship, agreements, and documents, exchanged between FNBC and TMJ.”

The defendant also sought to compel the deposition of one or more former FNBC representatives, pointing out that the FNBC representatives are listed on both parties’ witness lists. However, because they did not have all of the FNBC documents prior to the discovery deadline, they initially decided not to depose FNBC. The late production of documents caused them to revisit this decision.

The plaintiff opposed the deposition of any FNBC representatives, claiming the request is untimely, because they identified FNBC personnel in its initial disclosures and earlier document production and that the defendant had long had sufficient information to determine whether to take such depositions. The plaintiff insisted it would be prejudiced if the depositions were allowed, given that trial was imminent.

TMJ’s Motion to Compel

The plaintiff’s motion to compel sought certain financial documents, including tax returns and schedules, financial statements, and accounting ledgers for all of the defendant’s other Margaritaville restaurants, insisting the documents were relevant, because the defendant’s financial forecasts were based on comparable IMCMV owned restaurants, which influenced their decision to invest.

The defendant claimed these financials were irrelevant and disproportional as the other restaurants are not a part of this litigation. The defendant explained that this data was already produced in Excel files which was considered by their expert.

The plaintiff also demanded responses to its interrogatories regarding the reasoning behind changes to financial statements made while the investments at issue here were being negotiated, alleging that the defendant altered them to make the investment appear more attractive to the plaintiff and FNBC. The plaintiff makes note that their identical responses to the three requests aren’t “boilerplate,” but that they meaningfully explain how changes were made by stating that “in preparing financial projections, [IMCMV] takes into account planned seating capacity, estimated revenue per seat per year, the financial results of other Margaritaville-themed restaurants, the location, market competitors, and the labor market.”

The plaintiff also sought text messages between the parties, pointing out that they frequently corresponded in this manner. The defendant responded that their former chief development officer left the company, and they had not been able to access his iPhone. The defendant requested passcodes from the former CDO, but those didn’t work. Another individual who also was no longer working for IMCMV, had custody of the phone in the interim, but he had reset the phone and added a new passcode. The defendant then contacted Apple and its carrier, AT&T, who both indicated that the passcode could not be bypassed without resetting the phone.

Judge’s Ruling

Regarding IMCMV’s motions, there was no real dispute that a deposition of an FNBC representative is within the scope of discovery. Judge van Meerveld ruled that “a second deposition of Motwani [an FNBC Bank representative] is appropriate here in light of the documents produced after his deposition. The scope of the deposition shall be limited to the documents produced after Motwani’s deposition, and any other documents or issues required to give context to, provide clarification of, to contrast with, or explain discrepancies with the documents produced after Motwani’s deposition. This could, therefore, permit reference to earlier produced documents.” Accordingly, an extension of the discovery deadline was provided, and the defendant “may proceed with a deposition of one FNBC representative and, if necessary due to that representative’s inability to provide complete answers, a second FNBC representative.”

In regard to the plaintiff’s motions, Judge van Meerwald agreed that “the financial documents for the other Margaritaville restaurants are not relevant or proportional to the needs of this case. TMJ already has the key performance indicators extracted from those financials for the purpose of creating the business cases and pro formas for the proposed investment. The relevance of the financial statements of the other restaurants is too tangential to justify the burden of production.” As to these documents, the motion to compel was denied.

As to the plaintiff’s demand that certain financial documents be produced in Excel rather than PDF format, the court found the burden to the defendant “too great to justify IMCMV undertaking that endeavor here. However, the Court has ordered the parties to work together to provide the documents in their native format. If this is unsuccessful, the parties may contact the chambers of the undersigned to set up a telephone conference to discuss.”

So, what do you think? Did the judge interpret the idea of scope under Rule 26 correctly?  Please share 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.

Former Employee Sanctioned for Lying Under Oath, Destruction of ESI: eDiscovery Case Law

In Heggen v. Maxim Healthcare Servs., Inc., No. 1:16-cv-00440-TLS-SLC (N.D. Ind. April 27, 2018), Indiana Magistrate Judge Susan Collins ruled that the plaintiff’s destruction of requested cellphone recordings, as well as lying under oath, were sanctionable under FRCP Rule 37.

Case Background

The plaintiff filed the case against her former employer – a provider of temporary medical staffing, home health care, and wellness services – with claims of sexual harassment and retaliation. The plaintiff stated under oath that she chose to leave these employers “voluntarily” because the two clients with whom she worked were going into a nursing home.

However, the defendant pointed out that records show that the plaintiff was terminated after she refused to discuss a complaint that the plaintiff stole $300 from a client under her care, as well as mismanagement of the client’s financial assets. A discovery request to the Indiana Department of Workforce Development revealed that the plaintiff had worked for Interim Health Care immediately prior to joining the defendant, even though she responded to the first request for production with a different former employer, and then stated a second employer during her deposition. Based on the records from Interim, the defendant claimed that the circumstances of the plaintiff’s departure from Interim were “strikingly similar” to the plaintiff’s time at the defendant, including that a patient’s medications went missing – the plaintiff then tested positive for the missing medications on a drug test, and the plaintiff failed to return to work after the complaint.

The clearest contention that the defendant brought is that the plaintiff destroyed key evidence in at least three different ways and this, along with the other actions by the plaintiff, the defendant contended was grounds for a dismissal sanction. The plaintiff testified at her deposition that she made about seven recordings of unidentified defendant employees and said these recordings supported her claims against the defendant, she also testified that the Equal Employment Opportunity Commission (“EEOC”) had the recordings, because she deleted the recordings from her cell phone since she “didn’t want them to have [her] phone lost and have them be out there.” She claimed she had emailed the recordings to the EEOC, but couldn’t find any copy of the emails transmitting the recordings. After sending the emails, she performed a factory reset of her phone (an older Apple model) that basically had “broke[n] down,” and that she was trying to get working again. The reset deleted all of the data stored on it, including the recordings.

She felt that emailing the recordings to EEOC was a form of preservation and “thought it was okay to get rid of them[.]” Copies of three of the recordings were found, and the plaintiff submitted transcripts of these recordings with her response brief, and she also provided a copy of the recordings and transcripts to the defendant. However, there was no explanation for the other missing recordings.

The defendant had sought the recordings from the plaintiff for months through traditional discovery and because it did not have the recordings when it deposed the plaintiff, it felt that resulted in prejudice against them. They also argued that there was a significant difference between original recordings and copies of recordings. What the plaintiff submitted appeared to be at least two different layers of recorded conversations: “an ongoing face-to-face interaction between individuals who are supposedly simultaneously listening to and participating in a different interaction by telephone, all recorded on top of each other.”  Also, because they were copies, there was no way to delve into the original metadata of the recordings. Further, while the original recordings were made on an iPhone, the files produced were in 3GP format, a format generally used by Android phones, raising even more questions.

Judge’s Ruling

Judge Collins ruled that the defendant’s failure under oath to disclose Interim as a prior employer and for her destruction of the original cell phone recordings was sanctionable. But noted that a sanction for discovery abuse must be “a proportionate response to the circumstances.”

Judge Collins stated, “The draconian sanction of dismissal is not presently warranted here. Rather, the present circumstances warrant the imposition of lesser sanctions in the form of a monetary penalty—that is, ordering Heggen to pay the reasonable expenses, including attorney’s fees, that Maxim incurred in filing the motion to compel [See FRCP Rule 37]. The Court has no reason, at least at this juncture, to conclude that the imposition of this monetary penalty would be fruitless. The Court will also consider a spoliation instruction upon a pretrial motion by counsel should this case go to trial. The motion for sanctions is otherwise denied. Heggen is duly warned that any additional discovery transgressions may result in further sanctions against her, up to and including dismissal of this case.”

So, what do you think?  Was the ruling correct or was a sanction of dismissal warranted in this case?  Please share 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.

Former Football Players Sanctioned for Failure to Produce: eDiscovery Case Law

In Michael E. Davis, et al. v. Electronic Arts, Inc., No. 10-cv-03328-RS, (N.D. Cal., April 3, 2018), California Magistrate Judge Donna M. Ryu ruled that the plaintiff’s failure to fully comply with the discovery requests by the defendant were sanctionable under FRCP Rule 37, which states, “Such sanctions may include ordering a party to pay the reasonable expenses, including attorneys’ fees, caused by its failure to comply with the order or rule.”

Case Background

Three former NFL players claimed that Electronic Arts (EA) used their likenesses in the Madden NFL videogame series without authorization. In July 2017, EA moved to compel plaintiffs to provide further responses to discovery, and the court ordered the parties to meet and confer regarding the disputes set forth in the letters and to file joint letters regarding any remaining disputes. After a hearing, the Court granted in part EA’s motions to compel further responses to requests for the production of documents (“RFPs”), interrogatories, and requests for admission (“RFA”), setting a deadline for response on September 28, 2017.

A day after the deadline, the plaintiffs responded by saying they had, “engaged in a reasonable and diligent search” but found no responsive documents to certain requests. The plaintiffs also said the requested privilege log was rendered unusable due to a computer error even though both the plaintiffs and the plaintiffs’ attorney had stated in an earlier hearing that they had regular communications via email regarding the case.

EA requested sanctions of $45,000 against the plaintiffs under Rule 37. However, the billing records EA provided to the court did not segregate the fees by task or category, which makes it difficult to evaluate the reasonableness of the time expended, or to calculate precise sums that should be allowed or disallowed. But even with the problems with EA’s billing records, it was clear that EA incurred substantial attorneys’ fees in attempting to obtain plaintiffs’ compliance and seeking court intervention.

Judge’s Ruling

Given the inconsistencies between counsel and plaintiffs’ statements about communications regarding this litigation, Judge Ryu expressed concern about the adequacy of the plaintiffs’ search for responsive documents and ordered them to “search thoroughly all . . . email, going all the way back, for communications between [Plaintiffs] and other people who are not lawyers about this case.”

Judge Ryu also ruled that the plaintiffs’ response to the defendant’s discovery request was deficient and found monetary sanctions appropriate in this case, in addition to the evidentiary sanctions, as their conduct forced EA and the court to continue to expend significant resources to address plaintiffs’ failure to meet its discovery obligations and provide basic discovery.

“A sanction of $25,000 is justified in these circumstances and acknowledges that this amount represents a significant discount from the actual attorneys’ fees incurred by EA as a result of plaintiffs’ counsel’s actions. The court finds that $25,000, coupled with the evidentiary consequences set forth above, are an appropriate sanction here.”

So, what do you think?  Was the ruling correct or were sanctions unwarranted in this case?  Please share 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.

Court Compels Discovery in Response to Party That Was Using Outdated Rule 26 Standard: eDiscovery Case Law

In Cen Com, Inc. v. Numerex Corp., No. C17-0560 RSM, (W.D. Wash., April 11, 2018), Washington Chief District Judge Ricardo S. Martinez ruled that the Plaintiff’s refusal to comply with the Defendant’s request for discovery using specific search terms was not justified, and that the Plaintiff must “fully comply with the subpoenas that Defendants served upon them and shall produce all responsive documents in a format that is accessible/readable by Defendants.”

Case Background

A request for discovery was issued by the Defendant for the founder and owner of the Plaintiff, along with two current employees of the Plaintiff, all of whom were former employees of the Defendant. The plaintiffs objected to the subpoenas “on the basis that it was an improper attempt to obtain discovery from a party employee,” and “that the subpoena is overbroad, unduly burdensome, and that the costs outweigh the potential for acquiring relevant information.”

The Defendant also filed a motion to compel the Plaintiff to use specific electronic search terms (“attorney w/2 general” and “consent w/2 decree”) related to a 2012 consent decree that Plaintiff entered into with Washington State’s Attorney General. The Plaintiff objected to the search terms regarding the consent decree as irrelevant.

As part of a counterclaim, the Plaintiff requested sanctions against the Defendant, claiming they withheld certain documents because of a pending motion for protective order, which was later denied by the Court. However, the Plaintiff continued to seek sanctions for the time period that it alleges Defendants were not in compliance with the stipulated ESI Order.

Judge’s Ruling

In Judge Martinez’s ruling, all of the Defendants’ motions were granted. Regarding the scope and relevance of the discovery request, it was noted that the Plaintiff was basing their refusal to comply on the former FRCP Rule 26 standard and not in line with the current version of Rule 26, which states discovery must be relevant to the claim and proportional to the needs of the case, while taking into account the parties’ access to relevant information and available resources, the importance of the discovery in resolving the matter, and whether the burden or expense of discovery outweighs its likely benefit.

Additionally, under Rule 37, “The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” Here the Plaintiff failed to explain specifically why the documents are not relevant, or that a search of the documents would be unduly burdensome, and instead only made the blanket statement that the documents sought “do not concern this matter and could not lead to relevant information.”

In regard to the Plaintiff’s counterclaim, Judge Martinez denied the motion for sanctions, citing Rule 37(d)(2): “A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).”

So, what do you think?  Was the ruling correct or were the Defendant’s requests “overly burdensome”?  Please share 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.

Pizza Hut Pie Tops – The Internet of Things Keeps Getting Stranger: eDiscovery Trends

Editor’s Note: Jim Gill’s writing about eDiscovery and Data Management has been twice recognized with JD Supra Reader’s Choice Awards and he holds an MFA in Creative Writing from Southern Illinois University, Carbondale.  Before working in eDiscovery, Jim taught college writing at a number of institutions and his creative work has been published in numerous national literary journals, as well as being nominated for a Pushcart Prize.

Jim’s post below highlights the proliferation of “internet of things” (IoT) devices in our world (with a unique example) and how that can impact eDiscovery activities.  Great timing, as I will be talking about collecting data from IoT devices at the University of Florida E-Discovery Conference, which will be held a week from today – Thursday, March 29.  As always, the conference will be conducted in Gainesville, FL on the University of Florida Levin College of Law campus (as well as being livestreamed), with CLE-accredited sessions all day from 8am to 5:30pm ET.  I (Doug) am on a panel discussion at 9am ET in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig Ball, Kelly Twigger, with Judge Amanda Arnold Sansone.  Click here to register for the conference – it’s only $199 for the entire day in person and only $99 for livestream attendance.  Don’t miss it!

A couple of weeks ago, Pizza Hut announced the release of a pair of sneakers dubbed Pie Tops II – yes, real wearable shoes – which will link with your phone via Bluetooth to connect with the Pizza Hut app, allowing you to order a pizza with the single push of a button on the shoe’s tongue. An additional feature connects with TV receivers like Xfinity, Spectrum, and DirecTV, pausing whatever you’re watching when the pizza arrives at the door.

Yes, this is obviously a marketing gimmick, though it could be yet another sign we’re on the fast track to the world portrayed in the film Idiocracy. But when I saw this, I immediately imagined the possible eDiscovery implications. The IoT has continues to play more of a role in the law, particularly in criminal cases, such as the one where a man in Connecticut was arrested for the murder of his wife because of evidence attained from her Fitbit (covered by the eDiscovery Daily blog here). Now more than ever, criminal and civil courts are dealing with digital evidence that not so long ago didn’t even exist.

Many people in eDiscovery still think of ESI as email or documents. And for the most part, they’re right. But anyone working in the legal tech / data management industries should know by now that what isn’t a concern today, will be in a short matter of time. For individuals, short-sightedness regarding technology may not pose a huge concern on a day-to-day basis. For most of us, the biggest data risk we face is dropping our phones in the toilet. But for corporations, government entities, and other large organizations, getting caught off guard when it comes to the ability to preserve and collect data could bring significant costs, both financial and legal.

This is a where a robust information governance program can protect you from potential snags down the road. Not every new technology will apply to your organization but knowing what your current data landscape looks like gives you a head start on being prepared should something new arise. Housecleaning is also an important part of this process. Once you have a handle on everything, you can begin making decisions on what needs to be kept and what can be defensibly deleted. With data storage becoming more readily available, along with in-place preservation platforms, it’s very easy to keep everything and worry about it later. But more data is coming down the pipe in droves, and sooner or later it’s going to get unwieldy.

It’s also important to think about policies and contingencies regarding new technologies as they come into your organization. More and more people are using their own devices, particularly on the mobile front, which means a huge number of applications are creating ESI related to professional activity. If you don’t have a plan in place for dealing with these as far as preservation and collection, things could get stressful in a hurry should litigation arise. The flipside of that scenario is that too strict a lockdown on the types of devices and platforms that can be used could cut into productivity and dampen creativity.

The main thing to focus on is open and forward-thinking communication should happen continually between all stakeholders: legal, IT, business units, and 3rd party vendors. This way, if something unexpected does come up, everyone is on board and knows how to handle it.

It’s pretty unlikely that data from the Pie Tops II will come into play in your next big case (though I can imagine a modern-day Perry Mason-type drama where someone’s alibi hinges on the time and place they ordered a pizza from their shoes). But, their very existence should get you thinking about the data types that your organization is using, or may soon start using, and their role in litigation.

So, what do you think?  Have you seen a rise in new data affecting your organization?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Pizza Hut, LLC

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.

Tending Your Garden: Why Information Governance Should be an Ongoing Process in Your Organization: eDiscovery Best Practices

Editor’s Note: Jim Gill’s writing about eDiscovery and Data Management has been twice recognized with JD Supra Reader’s Choice Awards and he holds an MFA in Creative Writing from Southern Illinois University, Carbondale.  Before working in eDiscovery, Jim taught college writing at a number of institutions and his creative work has been published in numerous national literary journals, as well as being nominated for a Pushcart Prize.

Jim’s post below highlights the importance of a strong information governance program and how creation of a data map can be a key component to that IG program.  Complying with the management requirements of personal data in Europe’s impending General Data Protection Regulation (GDPR) will make information governance even more of a priority than ever as Tom O’Connor and I discussed in last week’s webcast.

Just south of San Francisco lies the Filoli mansion, built in 1916 for the Bourn family, and then sold to the Roth family in the 1930s. During that time, the formal gardens gained worldwide renown, and in 1975, the family donated the house and gardens to the National Trust for Historic Preservation.

This month, I was visiting a friend who is the head of horticulture there and was asking about the seasonal planning of the garden and if they use landscape maps, or if it’s up to the garden managers to decide what to plant and maintain. The answer, as most answers tend to be, involved a little of both. But he told me that they no longer had access to a lot of the maps, because they had recently upgraded their computers, and the new machines couldn’t read the old files.

“Did you switch from Mac to PC?” I asked.

“No, we just went with the latest Macs, but they can’t read the old Apple files.”

As computing has shifted more to mobile-based platforms, the issue of legacy document accessibility comes along with that shift. Certainly, it’s nothing new, as system updates with both hardware and software have become increasingly frequent over the last 20 years. But often there was a built-in reverse compatibility – the newest machines could read older software versions but not the other way around.

To add even more complexity, Apple has so far made the decision to keep its mobile iOS platform separate from its desktop/laptop OS. In an article in Time, written in December 2016 by Tim Bajarin, he states, “Keeping two separate operating systems makes sense for Apple, enabling the company to offer a more basic and approachable OS for mobile users, with more powerful software for pro buyers.” But he continues with his belief that “both everyday consumers and business users will embrace so-called “2-in-1” computers, which can function as both a tablet and a laptop-with-keyboard.”

When I asked my friend what Filoli was planning to do about the old maps, he simply smiled and said, “we’re not exactly sure yet.” Mainly, they’d just started creating new maps using the new programs, which at a small organization like his, will probably work just fine.

But it raises some interesting considerations when thinking about information governance and eDiscovery policy in a larger corporate setting.

First, in the same way that the Filoli gardeners used maps to understand the property’s landscape, organizations should create data maps in order to learn the same about their data landscape. What types of data are being stored, where is it stored, when was it created, and in the case of hardware and software updates, will there be compatibility issues.

Second, once a data map is created, policies should be created surrounding retention and storage. If you have older files that can’t be opened, one should question whether it’s even necessary to keep it around. Because storage is moving to the cloud and is becoming more and more affordable, many find it easier to simply just keep everything. But this can lead to issues down the road should litigation arise.

Finally, hardware and system updates are a great time to bring your organization’s data management program up to speed. Before moving old files over into a new system (such as Office 365), it could be beneficial, especially in the long term, to clean house before moving. However, this can be easy to put off, it takes extra time and effort, and if you’re in the middle of a move, being proactive about defensible deletion isn’t often top of mind. It’s the same reason why after you move into a new house and start unpacking boxes, you’re often left shaking your head and thinking, why did I bring this?

Even if you’re not planning to upgrade hardware or software platforms anytime soon, it is inevitable that your organization will do so. And in this day and age, the space between upgrades continues to grow narrower all the time. It may be a good idea to use the “off time” to begin the process of creating a data map, as well as information governance policies and contingencies, so that when the day comes for that upgrade, you won’t have to recreate some things from scratch, while still feeling compelled to carry around the outdated and inaccessible files.

So, what do you think?  Does your organization have a data map that is periodically updated?  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.

Glitch in the Matrix – The Vital Role of Communication Between All Stakeholders in eDiscovery: eDiscovery Best Practices

Editor’s Note: Jim Gill’s writing about eDiscovery and Data Management has been twice recognized with JD Supra Reader’s Choice Awards and he holds an MFA in Creative Writing from Southern Illinois University, Carbondale.  Before working in eDiscovery, Jim taught college writing at a number of institutions and his creative work has been published in numerous national literary journals, as well as being nominated for a Pushcart Prize.

Jim’s post below highlights the importance of communications between all stakeholders in the discovery process.  Here’s an example of what can happen when communications break down.  For more information on how CloudNine manages communications for our clients, contact us at info@ediscovery.co.

But first, this week’s eDiscovery Tech Tip of the Week is about Filtering Your Document Collection.  Some attorneys like to load data and get started right away with searching, before they cull out duplicates and clearly non-responsive files.  This can drive up review and production costs and lead to inconsistency in review.  If data for several custodians in an organization is collected for review, many of them will have the same files and emails, especially when those emails are sent to large groups or all employees, so there’s generally no need to review them more than once.  Every file has a digital fingerprint known as a HASH value and all files with the same content in the same format will have the same HASH value, so you can set aside all of the duplicates after the first file.  Domain categorization and relevant date range identification are other areas where you can effectively cull before searching.  The ability to select specific clearly non-responsive domains or collected files outside of the relevant date range and put them quickly into the non-responsive “bucket” can save a lot of time in review and production.

The good news is that the process of filtering that redundant or clearly non-responsive ESI today can be largely automated.  To see an example of how Filtering Your Document Collection is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

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In an article by Morgan Chalfant at The Hill posted on January 25th, it was reported that text messages between two FBI employees that were sought by Congressional and Justice Department investigators had not been preserved due to a “glitch” that not only affected the messages in question, but nearly 3,500 FBI devices, “close to 10 percent of cell phones used by bureau employees”.

In this day and age, where data hacks and cyber-espionage are no longer the realm of near-future science fiction, cries of a conspiracy were quickly sounded. But the reality, according to FBI officials, was “that the messages were not preserved as a result of misconfiguration issues related to software upgrades of FBI-provided Samsung 5 mobile phones that conflicted with the bureau’s archiving efforts.”

As more and more tools and applications move to cloud-based platforms, particular awareness has to be taken when it comes to automatic system updates. Last year, when it seemed everyone in eDiscovery was moving or planning to move to Microsoft Office 365, one thing that users noted (particularly those in legal departments) was that they weren’t notified about the updates, either because IT didn’t communicate the updates to users in Legal, or the users in Legal didn’t notice when IT did communicate the updates. Some of these early O365 updates would change settings back to a default, resulting in problems related to retention and preservation. It seems a similar issue is what happened with the FBI’s phones.

This brings up a couple of challenges that are common in eDiscovery:

  • First, the need for clear communication between all stakeholders involved in the process — Legal, IT, Lit Support, Project Managers, Security, Business Units, etc. Information moves fast enough as it is, and when you add elements like automatic updates to the mix, it’s extremely difficult to keep up. Most people don’t track when the apps on their phone update. You might notice it happening via a push notification, but unless the app stops working the same way or a new feature or interface pops up, we simply move on. Apparently, even the FBI does this. So this is why it’s important to create communication protocols surrounding technology changes ahead of time, so that things like this aren’t missed.
  • And second, the need for having a good working relationship with software vendors / providers. More and more, the role of industry third-parties can provide insight, training, and support for the smooth operation of your team’s information governance and eDiscovery operations. With software platforms moving to the cloud, vendors have more and more control over your organization’s processes (which isn’t a bad thing, because they most likely have more technical knowledge on making things run successfully). If you can find a vendor that understands your organization’s needs and is willing to develop a solid working relationship with your eDiscovery team, then when glitches do arise, it’s much easier to handle them.

When things go wrong in a big way, it’s tempting to blame it on the technology (or even better the unknown wizards behind the curtain who created it). Which is all the more reason why legal teams need to incorporate experts who understand the technology and how it affects (or could potentially affect) operations, and then foster regular and open communications with all parties involved, so that everyone knows how to avoid potential problems, or when they do, there are policies and protocols in place for quickly bringing things back in working order.

So, what do you think?  How do you manage communications with stakeholders in 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.

ESI, ROT, and LBJ – Thoughts on Data Management While Visiting the Lyndon Johnson Presidential Library: eDiscovery Trends

Editor’s Note: If you love to read blogs about eDiscovery, you’ve undoubtedly read posts and articles by Jim Gill.  So, we’re excited to have Jim providing some guest posts for eDiscovery Daily!  Jim’s writing about eDiscovery and Data Management has been twice recognized with JD Supra Reader’s Choice Awards and he holds an MFA in Creative Writing from Southern Illinois University, Carbondale.  Before working in eDiscovery, Jim taught college writing at a number of institutions and his creative work has been published in numerous national literary journals, as well as being nominated for a Pushcart Prize.

Jim’s post below highlights the importance of information governance and the need for data discovery to manage increasing volumes of data (as we discussed during this webcast last month).  For more information on how CloudNine helps organizations with data discovery, contact us at info@ediscovery.co.

But first, this week’s eDiscovery Tech Tip of the Week is about Issuing a Timely Legal Hold.  Without a doubt, the most frequent type of case we’ve covered on the eDiscovery Daily blog has had to do with sanctions for spoliation of ESI.  Often, the risk of spoliation of ESI can be minimized simply by issuing a properly documented legal hold, which can go a long way in showing due diligence efforts to meet your duty to preserve.  It’s also important to understand that the duty to preserve begins when there is a reasonable expectation of litigation, which can sometimes be well before a case is actually filed.  For example, if a terminated employee (who feels that he or she was wrongly terminated) says something like “I’m going to sue you, you’ll be hearing from my lawyer”, your duty to preserve responsive ESI related to their employment and termination may begin then, not when the case is actually filed.  Here’s a famous example of a case where a company failed to meet its duty to preserve.

The good news is that the process of issuing a legal hold today can be largely automated.  To see an example of how Issuing a Legal Hold is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

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A few weeks ago, I took a road trip from Oregon to Austin, Texas as a way to ring in the new year. A friend met me there, and one of the things we’d hoped to do (besides listen to a lot of live music) was visit the LBJ Presidential Library housed at the University of Texas campus. As the man at the information desk said with a smile, “In Texas, we like to do things a little bigger and a little better,” before explaining that the other presidential libraries keep all the documents created during a presidency, but with Lyndon Johnson, the library contains not only documents from his presidency, but from his entire time in public service.

From the 4th floor mezzanine, you can see the upper floors of the library through glass — Five through Nine contain Johnson’s documents — five floors of paper documents, that may be historically significant and valuable to researchers. The library houses more than 45 million pages, including an extensive audiovisual collection and more than 650,000 photos and 5,000 hours of recordings.  Which made me think of the state of data creation, management, storage, and security in the corporate world today.

We’ve all read various stats on the exponential growth of Electronically Stored Information (ESI), that basically more data is created every two years than all of the data created up to that point in history. It’s a daunting notion. Which means corporations and other organizations need to get serious about data management.

From a legal standpoint, attorneys tend to be very risk averse, and in the name of defensibility, tend to take on a “save everything” approach to data. And a few years ago, this may have been the best approach. But now, with more secure cloud-based information governance and eDiscovery solutions, companies can quickly map and analyze their data landscape and decide what is absolutely necessary to keep, and what can be deleted without affecting defensibility should litigation arise.

In 2016, a study by Veritas found that as much as 85% of ESI is Redundant, Obsolete, or Trivial (ROT). If you think of the image of the five floors of documents at the Johnson Library, that means four of those floors (and part of the fifth) would be filled with duplicates, things that didn’t relate to Johnson’s tenure as a public servant, or grocery lists scribbled on napkins. A Fortune 500 company in 2018 might create five floors worth of data every year (or more!), most of it ROT.

The consequences of poor data management are wide ranging: storage costs; security risks should there be a data leak; eDiscovery costs, particularly surrounding collection and review; etc. Which is why automating and integrating both data discovery and analysis with eDiscovery tools is vital for any organization so that the concerns of all stakeholders (Legal, IT, and Business Units) are covered.

So, unless you’re a presidential library, whose sole purpose is to keep everything, it might be time to consider the state of your organization’s data and move toward a more secure, defensible, and cost-effective approach.

So, what do you think?  How does your organization keep ROT at bay?  Please share any comments you might have with us or let us know 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.