Electronic Discovery

The Internet is Even Busier That it Was Last Year: eDiscovery Trends

About this time last year, I published (or re-published, if you will) a terrific infographic that illustrated what happens within the internet in a typical minute in 2016.  Since I will be part of a panel discussion at The Master’s Conference in San Francisco next Tuesday and the topic will be big data and data discovery, I thought it would be good to take a fresh look at what happens in a 2017 internet minute!

This updated graphic, created by Lori Lewis, illustrates what happens within the internet in a typical minute in 2017.  There are several different categories tracked in this graphic than the one we referenced last year, so it’s interesting to see what’s tracked this year.  For the categories that are the same, they are all (not surprisingly) up, compared to last year – some more than others.  More data to manage within organizations and during litigations, investigations and audits than ever!  Here is the graphic again, full sized:

They say a picture says a thousand words, so consider my blog post complete for today!  :o)

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

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

Craig Ball Says That Failure to Preserve Mobile Devices in Litigation is the “M” Word: eDiscovery Best Practices

In the latest post in his excellent Ball in Your Court blog, Craig Ball has some strong words for attorneys who fail to advise clients to preserve ESI from mobile devices when under a preservation duty.

In the post titled A New Paradigm in Mobile Device Preservation, Craig discusses how prevalent the use of mobile devices have become in our society, noting that “[d]riving under the influence of phones has eclipsed driving under the influence of alcohol as the most frequent cause of motor vehicle collisions” and that “[w]alking into fixed objects while texting is reportedly the most common reason young people visit emergency rooms today”.

As someone who never goes anywhere without my iPhone and a parent of two pre-teen kids for whom we have to set limits on their devices (for fear that they will literally spend the entire day on them), I can certainly relate to our level of addiction to our mobile devices in today’s society.

Because of that change, Craig issues a very strong statement when it comes to an attorney’s duty to advise clients to preserve ESI from these devices now:

“Today, if you fail to advise clients to preserve relevant and unique mobile data when under a preservation duty, you’re committing malpractice.”

That’s the “M” word that I referred to in the title of this post and Craig says he doesn’t use it lightly.

Craig identifies the fact that data on phones and tablets is not just a copy of ESI on other sources anymore and the increasing ease to perform a backup of data on your mobile device as two paradigm shifts that impact the requirement for mobile device preservation.  Today, it’s unique data without an unusual burden required to preserve that data.

Our coverage yesterday of this case where the judge recommended dismissal of the case after the plaintiff erased and reset her iPhone – 6 hours before turning it over to her attorney to be sent for forensic examination (naturally, she claimed not to know what happened) illustrates what can happen when mobile devices aren’t preserved.  Sadly, I expect we will see more cases like this in the future.

So, what do you think?  Is failure to advise clients to preserve ESI from mobile devices malpractice?  As always, please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

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

Plaintiff’s Erasure of iPhone Before Forensic Examination Leads to Recommended Dismissal of Case: eDiscovery Case Law

In Coyne v. Los Alamos National Security, LLC et. al., No. 15-0054 (D. N.M., Mar. 21, 2017), New Mexico Magistrate Judge Karen B. Molzen recommended that the court grant the defendants’ motion to dismiss after the plaintiff’s erased and reset her iPhone the day before it was produced for forensic examination, the “culmination of her and her husband’s willful failure to comply with their discovery obligations in this case.”

Case Background

In this case where the plaintiff alleged wrongful termination (among other complaints) after she was terminated pursuant to a Reduction in Force policy (the plaintiff contended it was retaliation for taking leave under the Family Medical Leave Act after an alleged assault by a co-worker), the Court had already granted Motions to Compel against both Plaintiff and Defendants.  However, only the plaintiff and her husband had been sanctioned for discovery violations with various fees, including attorney’s fees, to the tune of over $11,000 (most of which was still unpaid).

The parties continued to proceed with discovery, and on September 30, 2016, the defendants served plaintiffs’ counsel with a request for a forensic inspection of the plaintiff’s iPhone, seeking text messages between the plaintiff and her husband and between the plaintiff and her treating psychiatrist.  The plaintiff not only did not object to the request, she even cooperated with the defendants’ attempts to retrieve them from her cellular carrier and from Apple before agreeing to the inspection.

On January 4, 2017, the plaintiff’s counsel called the defendants’ to report that he was ready to ship the iPhone to the forensic examiner and it was sent the next day.  The forensic examiner discovered that the phone had been erased and reset six hours before the plaintiff had turned it over to her attorney to be sent for examination. In his affidavit testimony, the forensic examiner explained that erasing and resetting an iPhone cannot happen accidentally or inadvertently, but the plaintiff claimed to have no knowledge of what had happened. As a result, the defendants moved the Court to dismiss the plaintiff’s case in its entirety with prejudice “as a sanction for Plaintiff’s intentional and permanent erasure of all the data on her iPhone the day before it was produced” for the forensic evaluation.

Judge’s Ruling

Judge Molzen considered the relevant factors necessary to determine whether dismissal was warranted.  Those factors are: (1) The degree of actual prejudice to the defendant; (2) The amount of interference with the judicial process; (3) The culpability of the litigant; (4) Whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and, (5) The efficacy of lesser sanctions.  With regard to those factors, Judge Molzen determined that all were satisfied, with the possible exception of the fourth factor, but stated that she “is not convinced such a specific warning was required in this case”.  Judge Molzen also determined that none of the available sanctions options were sufficient, noting that “almost all” of the monetary sanctions levied against the plaintiff “remain unpaid”.

Determining that “Plaintiff’s decision to erase and reset her iPhone the day before it was produced” was “but the culmination of her and her husband’s willful failure to comply with their discovery obligations in this case”, Judge Molzen recommended that the court grant the defendants’ motion to dismiss.

So, what do you think?  Was the recommended sanction too harsh?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Has eDiscovery Business Gotten a Bump or a Slump from Trump?: eDiscovery Trends

Don’t be a chump, be the ump!  It’s time for another quarterly eDiscovery Business Confidence Survey!  This time, it’s the Spring 2017 eDiscovery Business Confidence Survey created (and cleverly titled) by Rob Robinson and conducted on his terrific Complex Discovery site.  It’s the second year of the quarterly survey and we’ve covered every round of the survey so far (2016 coverage of results are here, here, here and here, and Winter 2017 coverage is here).  Now, it’s time for the Spring 2017 Survey!

As before, the eDiscovery Business Confidence Survey is a non-scientific survey designed to provide insight into the business confidence level of individuals working in the eDiscovery ecosystem. The term ‘business’ represents the economic factors that impact the creation, delivery, and consumption of eDiscovery products and services.

This year’s survey consists of nine multiple choice questions focused on factors related to the creation, delivery, and consumption of eDiscovery products and services and may be useful for eDiscovery-related business planning.  It’s a simple nine question survey that literally takes about a minute to complete.  Who hasn’t got a minute to provide useful information?  As always, individual answers are kept confidential.

The Spring 2017 Survey response period is between today and achievement of 100 responses or May 31, 2017 (whichever comes first).  If last quarter is indicative of the voting, the survey will be closed way before May 31.  So, vote early if you want to be counted!  What more do you need?  Click here to take the survey yourself.

Now that we have entered a second year for the survey, we’ve started to evaluate year over year results to differentiate those variations from quarterly fluctuations and eDiscovery Daily will cover the results once again!

So, what do you think?  Are you confident in the state of business within the eDiscovery industry?  Share your thoughts in the survey and, as always, please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

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

Court Tells Litigants “NO MORE WARNINGS” When It Comes to Boilerplate Discovery Objections: eDiscovery Case Law

In Liguria Foods, Inc. v. Griffith Laboratories, Inc., C 14-3041-MWB (N.D. Iowa Mar. 13, 2017), Iowa District Judge Mark W. Bennett declined to sanction the parties for issuing boilerplate objections, but strongly warned them that the use of boilerplate objections in the future would place counsel and their clients at risk for significant sanctions.

In this case related to millions of dollars’ worth of sausage that turned rancid, it became apparent to the Judge Bennett (during a review of another discovery dispute) that both parties had submitted “obstructionist discovery responses” to each other during the discovery process.  On January 27, 2017, Judge Bennett entered an Order To Show Cause Why Counsel For Both Parties Should Not Be Sanctioned For Discovery Abuses And Directions For Further Briefing, directing the parties to file, under seal, all their written responses to each other’s discovery requests by the following day. Judge Bennett also notified counsel of his intention to impose sanctions on every attorney who signed the discovery responses, if he determined that the responses were, indeed, improper or abusive

The parties filed their written responses to discovery requests, as directed, the following day.  Based on his review of the discovery responses, Judge Bennett identified numerous discovery responses, from both sides, that he identified as improper in this ruling.  According to Judge Bennett, the improper objections included:

  • “not reasonably calculated to lead to the discovery of admissible evidence”;
  • “subject to and without waiving its general and specific objections”;
  • “to the extent they seek information that is protected from discovery under the attorney-client privilege, the attorney work-product doctrine or is otherwise privileged or protected from disclosure”; and
  • “overbroad and unduly burdensome.”

In its brief in response to the Order To Show Cause, the plaintiff acknowledged that many of its objections were not stated with specificity, but asserted that it had not interposed any objection “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation” and that some of its objections did include explanations.  The defendant, in its brief, stated that its written responses to the plaintiff’s discovery requests were not intended for any improper purposes and that the parties had conducted the litigation in a cooperative and professional manner. The defendant also noted that a magistrate judge had reviewed various defendant responses and found no fault with them, contending that that both parties relied on standard “boilerplate” language to assure that they were not waiving their rights while they met and conferred about the scope of privileges, pertinent time periods, among other issues.

Both sets of counsel ultimately admitted that the reason they used “boilerplate” objections had a lot to do with the way they were trained, the kinds of responses that they had received from opposing parties, and the “culture” that routinely involved the use of such “standardized” responses.

Judge Bennett evaluated each boilerplate objections, identifying violations of Rule 26(d), 26(b)(5)(A)(iii) and the “specificity” requirements of Rules 33(b)(4) and 34(b)(2).  However, in part because the parties “did not try to raise frivolous defenses for their conduct when called on” the use of “boilerplate” sanctions, Judge Bennett declined to sanction the parties this time.  Instead, he provided a new Supplemental Trial Management Order, advising the lawyers for the parties that “in conducting discovery, form or boilerplate objections shall not be used and, if used, may subject the party and/or its counsel to sanctions. Objections must be specific and state an adequate individualized basis.”

Judge Bennett also concluded his order with these strong words, in caps for emphasis: “NO MORE WARNINGS. IN THE FUTURE, USING “BOILERPLATE” OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS.”

Here’s another recent case where parties were warned about “boilerplate” objections.

So, what do you think?  Will we someday get past the issue of lawyers using standard, “boilerplate” objections in discovery responses?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Today’s the Day to Find Out What Every Attorney Should Know About eDiscovery in 2017: eDiscovery Trends

If you’ve missed earlier opportunities to find out what every attorney should know about eDiscovery in 2017, you get another opportunity today, thanks to our friends at ACEDS!

Today’s ACEDS webinar at noon CT (1pm ET, 10am PT) is titled (oddly enough) What Every Attorney Should Know About eDiscovery in 2017.  This is a one-hour session that Karen DeSouza (Director of Review Services here at CloudNine) and I have conducted for the past couple of years for hundreds of legal professionals for CLE credit in Texas.  It’s a good fundamental session that covers a lot of things attorneys need to know in eDiscovery today, including:

  • Key Terms
  • Phases of the EDRM
  • Rules Regarding Electronically Stored Information (ESI)
  • Competency Ethical Duties of Attorneys Regarding eDiscovery
  • Top Ten Important Cases in the Evolution of eDiscovery Best Practices
  • Useful Resources for eDiscovery Continued Education

The webcast is CLE approved in Texas, with 1.0 hours of CLE credit, with 0.25 hours of Ethics credit.  To obtain approval in Texas, you will need to send your information (along with bar number) after the webcast to Karen at kdesouza@ediscovery.co, so that she can log your credit hour.  Other states may offer reciprocity credit for CLE approved in Texas, so check with your State Bar for more information.

Let’s face it, managing discovery is more complicated and expensive than ever, with more data and documents to manage, new sources and types of data to consider, and changing Federal and State rules.  This webinar can help you learn what you need to know to stay on top of it all.

To sign up for today’s webcast, click here.  Hope to see you there!

So, what do you think?  Do you feel like you need help understanding the eDiscovery process and what courts expect?  If so, please feel free to join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will be off tomorrow for Good Friday and will resume with a new post on Monday.

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.

After Metadata Shows Agreement Documents to Be Unreliable, Defendant’s “Hans” are Tied: eDiscovery Case Law

In Ensing v. Ensing, et. al., No. 12591 (Del. Court of Chancery, Mar. 6, 2017), Vice Chancellor Slights ruled for the plaintiff in the case and concluding that the defendant “has engaged in blatant violations of court orders and bad faith litigation conduct that justify serious sanctions”, ordering him to pay two-thirds of the plaintiff’s counsel’s fees and expenses and all of the plaintiff’s computer forensic expert’s fees and expenses.

Case Background

This case arose between a divorcing husband and wife operating a winery and boutique hotel in Italy (indirectly through two Delaware limited liability companies) when the husband (Dr. Hans Ensing) tried to remove the wife (Sara Ensing) and appoint himself as manager of one of the entities, and then engage in a series of transactions intended to divest Sara of her interests in the winery and hotel.  As a result, Sara (now the plaintiff) initiated action against her husband (now the defendant) in this case in July 2016.

During the case, the defendant produced a “Pledge Agreement” and a “Trust Agreement” purportedly executed by the plaintiff and defendant, making the defendant manager of one of the entities and allowing him to appoint the management for that entity. The plaintiff denied ever signing the agreement and claimed they were “forgeries”.  In response to the plaintiff’s claims that the documents were “forgeries,” the defendant told the court that he intended to have “certified copies” of the documents “prepared at the U. S. Embassy in Rome (which never happened) and claimed during an October deposition that a lawyer and accountant had been instrumental in forming the entities (but he couldn’t provide contact information for the accountant or even his nationality).

The defendant also could not produce the originals of either of the disputed documents, but continued to argue that both documents were evidence in his favor.  The defendant also ignored the court’s order to turn over the devices on which he testified that he had created and stored the agreements, leading the court to grant the plaintiff’s motion to draw an adverse inference against the defendant, putting the burden on him to prove the two agreements were authentic.

Then, on the eve of trial, the defendant attempted to distance himself from both documents. Nonetheless, the plaintiff offered evidence that the company stamp appearing above her name on the Pledge Agreement wasn’t created until 2015, but the document was created in 2012 and had a computer forensic expert testify that the metadata from the Trust Agreement PDF file revealed that it was created on June 15, 2016, and then emailed to the plaintiff thirty minutes later.

Vice Chancellor’s Ruling

Vice Chancellor Slights stated: “After carefully reviewing the evidence, I conclude that Sara has carried her burden of proving that Hans had no authority to remove her as manager of the entities, to appoint himself as manager of the entities or to transfer membership units of one of the entities to an entity under his control.”  Vice Chancellor Slights also concluded that “Hans has engaged in blatant violations of court orders and bad faith litigation conduct that justify serious sanctions”, referencing the two agreements as “sham documents”.  As a result, Vice Chancellor Slights also ordered the defendant to pay two-thirds of the plaintiff’s counsel’s fees and expenses and all of the plaintiff’s computer forensic expert’s fees and expenses.

So, what do you think?  Does it seem like there are more cases than ever with potentially altered or forged ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. 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.

“Master” Your Knowledge of eDiscovery With This Conference in San Francisco Later This Month: eDiscovery Trends

I’m delighted to be participating in The Master’s Conference series again this year.  If you’re in the San Francisco area or plan to be there on April 25, join me and other legal technology experts and professionals at The Master’s Conference event for a full day of educational sessions covering a wide range of topics!

The Master’s Conference brings together leading experts and professionals from law firms, corporations and the bench to develop strategies, practices and resources for managing the information life cycle.  This year’s San Francisco event covers topics ranging from technology evaluations to forces changing eDiscovery to mobile device and social media discovery.  Cybersecurity and data science are covered too.

The event will be held at Bently Reserve, 301 Battery St, San Francisco, CA 94111.  Registration begins at 8am, with sessions starting right after that, at 8:30am.

CloudNine will be sponsoring the session Data, Discovery, and Decisions: Extending Discovery From Collection To Creation at 1:45pm.  I will be moderating a panel that includes Gordon J. Calhoun, Partner with Lewis Brisbois Bisgaard & Smith LLP, Jamie Raba, Attorney with Seyfarth Shaw LLP and Julia Romero Peter, General Counsel and Vice President of Sales with CloudNine.

Our panel discussion will discuss how big data is impacting today’s litigation landscape, the use of non-traditional tools and approaches and how more and more organizations are conducting “data discovery” pre-litigation.  It should be a very informative discussion with a very knowledgeable panel!  Hope you can join us!

Click here to register for the conference.  If you’re a non-vendor, the cost is only $175 to attend for the full day (that cost goes up to $300 after next Tuesday, April 18).

This year, The Master’s Conference also has events scheduled for Chicago, Denver, New York City, London(!), Washington DC and Orlando.  Click here for more information on remaining scheduled events for the year.

So, what do you think?  Are you going to be in San Francisco on April 25?  If so, come join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.