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Electronic Discovery

Wednesday LTNY 2013 Sessions – eDiscovery Trends

As noted yesterday, LegalTech® New York 2013 (LTNY) is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and over 225 exhibitors providing information on their products and services, including (shameless plug warning!) CloudNine Discovery™ at booth 2006.

While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2013 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 34 hits.  More eDiscovery sessions happening!  Here are some of the sessions in the main conference tracks:

10:30 – 11:45 AM:

E-Discovery and the Cloud – A Checklist for Success

What is your organization’s cloud strategy? For all of the benefits of cloud computing – from reduced infrastructure to greater accessibility – new challenges are emerging for the e-discovery process. From preservation to security, legal and IT teams need to weigh the new responsibilities and opportunities available with cloud applications.

To assist in the evaluation process, this session will discuss:

  • Key legal considerations for moving to the cloud, including the differences between public and private clouds
  • Key technical considerations for moving to the cloud, including security, 24/7 access and data privacy
  • Effectively negotiating service level agreements with cloud providers

Panelists are: Joel Jacob, FTI Technology; Caroline Sweeney, Dorsey & Whitney; Greg Buckles, eDiscoveryJournal; Mark Browne, Practice Support Regional Manager – Eastern Region, Paul Hastings.

Are We Here to Bury Search Terms?

“I come to bury Caesar, not to praise him. The evil that men do lives after them; the good is oft interred with their bones.” – William Shakespeare

Many pundits today are suggesting that search terms may be inadequate for locating truly relevant information in litigation. But do search terms still have a place in the e-discovery process? Are we “interring the good” without adequate thought? This session will cover the use of search terms in litigation, as well as discuss using technology assisted review in order to balance both cost and risk in responding to discovery requests in litigation and governmental investigations.

Panelists are: Rob Kidwell, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.; Gail Foster, Baker Botts; Matthew Baker, Bracewell & Giuliani; David Chaumette, Chaumette PLLC; The Honorable Andrew J. Peck, United States Magistrate Judge, Southern District of New York.  Moderator: Carolyn Southerland, Huron Legal.

Creative EDiscovery Problem Solving

There is no right answer. There is no wrong answer. There is only the BEST answer. This session will help you find the best possible solution to your ediscovery problems. In this brainstorm power session, you will:

 

  • Tackle the latest ediscovery problems
  • Develop action plans
  • Discuss meaningful ways to implement solutions

Panelists are: David Yerich, Director of Ediscovery, United Health Group; Martha Harrison, Ediscovery Attorney, Ropes & Gray; Rachel Rubenson, Assistant Vice President – Legal, Barclays.  Moderator: Jonathan Sachs, Regional Manager, Kroll Ontrack.

12:30 – 1:30 PM:

Meaning Based eDiscovery: Case Studies and Lessons Learned from the Use of Predictive Coding and Advanced Analytics

Traditional document discovery and linear review methods are no longer cost effective, let alone practical, for matters of all sizes. Too much valuable staff time and client dollars are sunk in an ocean of email. Join this session to hear best practices and real-life examples from leading law firms and thought leaders on a meaning-based approach to computer assisted review – how it is used today to optimize review and production and help lawyers improve cost and work product quality in the eDiscovery process.

Panelists are: Thomas A. Lidbury, Partner, Drinker Biddle & Reath LLP; Alan Winchester, Partner, Harris Beach PLLC; Jennifer Keadle Mason, Esq., Managing Partner, Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP; George Tziahanas, SVP, Legal and Compliance Solutions, HP Autonomy; Maura R. Grossman, Counsel, Wachtell, Lipton, Rosen & Katz.

2:00 – 3:15 PM:

E-Discovery in 2015 – How Corporations Will Do More with The Right Blend of Lawyers, Economics, Statistics and Software (LESS)

What will predictive coding’s long-term impact be on e-discovery and the legal profession? What will be the right balance of people, processes and technology in a mature and fully optimized e-discovery program? This interactive roundtable discussion will bring together legal professionals, academics, economists and statisticians to share the e-discovery industry roadmap and what corporations and law firms can do today to plan for e-discovery in 2015.

Attendees of this session will learn:

  • The long-term roadmap for e-discovery software development, including predictive coding
  • The key skills and training attorneys will need in order to effectively manage e-discovery, including statistics
  • Advice on how legal teams can plan and prepare for e-discovery in 2015

Panelists are: Joe Looby, FTI Technology; Judge Faith Hochberg, United States District Court for the District of New Jersey; Dawn Hall, FTI Consulting; Daniel Martin Katz, Michigan State University.

The Evolving Role of Analytics

There has been much discussion of the evolution of analytics. For years various analytic tools have been used to QC productions after human review, and now both sides are relying on analytics of various types to find the key documents in a matter. The Da Silva Moore and Kleen Products cases have shown us that parties—and judges – can disagree on the best processes for locating potentially relevant documents. What do the rules require? Are parties obligated to be transparent in their processes to show that their methods are reasonable? If the standard is reasonableness, what does the reasonable standard require?

Panelists are: Paul Zimmerman, Christian & Small; David Chaumette, Chaumette PLLC; Hon. Ron Hedges, Former US Magistrate Judge; Sarah Jane Gillett, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.  Moderator: Carolyn Southerland, Huron Legal.

A Live Simulation: TAR, CAR, IRT, Predictive Coding

This teaching exercise will involve audience participation so be ready to take part in this revolutionary experience. Your assistance categorizing documents, debating defensibility and more will help mold future TAR thinking.

Panelists are: Ralph Losey, Partner, Jackson Lewis; Jason R. Baron, Director of Litigation, National Archives and Records Administration.  Moderator: Chris Wall, Senior Director, Kroll Ontrack.

3:45 – 5:00 PM:

Advice from Counsel: Trends that Will Change E-Discovery (and what to do about them now)

For the fourth consecutive year, corporate counsel of Fortune 1000 companies are sharing their thoughts on e-discovery, and this year the focus is on the evolving trends that will impact the legal industry for years to come. From incorporating analytics for greater legal review productivity, to effectively managing a “Bring Your Own Device” (BYOD) workplace environment, attend this session to learn about where e-discovery is going, and what you can do today to better prepare for these changes.

Discussion topics to include:

  • The legal and technical ramifications of a Bring Your Own Device (BYOD) environment
  • The role of analytics in improving legal review
  • Going on offense against Big Data
  • The future of information governance

Panelists are: Ari Kaplan, Ari Kaplan Advisors; Sophie Ross, FTI Technology; Mai Pham Robertson, Fannie Mae; Vincent Miraglia, Chief Counsel for Litigation, International Paper; Daniel Boland, Associate, Pepper Hamilton LLP.

Will Technology Assisted Review Save Money?

The studies comparing other methods of search to technology assisted review (predictive coding) show that the use of TAR results in the identification of fewer non-relevant documents and a larger percentage of potentially relevant documents compared to methods such as keyword search. So why do we assume that the use of TAR will result in cost savings? Will there really be less data to go to human review, or can human review be avoided? Are further analytics required?

Panelists are: Ignatius Grande, Hughes Hubbard & Reed LLP; Sarah Jane Gillett, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.; Paul Zimmerman, Christian & Small; Rob Kidwell, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.  Moderator: Hon. Ron Hedges, Former US Magistrate Judge.

A Panel of Experts: A Candid Conversation

A panel of expert judges and lawyers will discuss cutting edge ediscovery challenges. Bring your questions for prestigious members of the bench and bar.

Panelists are: Honorable Lisa Margaret Smith, United States Magistrate, Southern District of New York; Honorable James C. Francis, United States Magistrate, Southern District of New York; Honorable Frank Maas, United States Magistrate, Southern District of New York.  Moderator: Anthony J. Diana, Partner, Mayer Brown.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

So, what do you think?  Are you planning to attend LTNY this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

Welcome to LegalTech New York 2013! – eDiscovery Trends

Today is the start of LegalTech® New York 2013 (LTNY) and, for the third year in a row, eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the New York area, I encourage you to check out the show – there are a number of sessions (both paid and free) available and over 225 exhibitors providing information on their products and services, including (shameless plug warning!) CloudNine Discovery™ at booth 2006.

While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2013 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 65 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

10:30 – 11:45 AM:

eDiscovery 3.0: Emerging Practices

Advances in technology continue to change the way eDiscovery is performed. Most notably, predictive coding, or “technology assisted review,” is becoming more widely accepted as part of the document review process. There continue to be questions about how it should be used, what level of disclosure is required, and the practical impact that it will have on the eDiscovery workflow. In addition, the strategies, implications, and challenges for predictive coding are still being addressed, prompting a reconsideration to a quality control approach. This presentation will offer several strategies for improving quality control while using predictive coding for document review.

Presented by: Manfred Gabriel, Forensic Principal, KPMG LLP.

Risk and Reward in the Cloud: Case Law and Cost Savings

As more organizations opt for cloud-based solutions to lower costs or meet stringent privacy and security requirements, questions on collection, legal jurisdiction, and privacy are beginning to arise.? This session explores emerging case law around the cloud and covers topics such as data ownership, multi-tenanted environments, and cross-border litigation.?? You’ll further learn how cloud computing can provide new levels of security, collaboration, agility, speed, and cost savings, while defensibly enforcing comprehensive information governance.

Panelists are: Ken Rashbaum , Esq., Principal, Rashbaum Associates, LLC; Tim Carroll, Partner, Perkins Coie’s Commercial Litigation Practice.  Moderator: George Tziahanas, SVP, Legal and Compliance Solutions, Autonomy, an HP company.

Statistical Sampling to Enhance & Defend Your E-Discovery Practice

Although the complexities of statistics may seem daunting to many lawyers, statistical sampling is fast becoming essential to the discovery process. In e-discovery, statistical sampling can help increase confidence, reduce cost and improve defensibility. But the advantages of sampling are rarely realized, simply because most lawyers are not statisticians. This panel will discuss what in-house counsel needs to know about statistical sampling in e-discovery matters, including:

  • The basics of statistical sampling
  • Why in-house counsel should consider incorporating statistical sampling into the e-discovery process
  • Opportunities to use statistical sampling
  • Key decisions counsel must make when using statistical sampling

Panelists are: Pallab Chakraborty, Director of eDiscovery, Oracle; Gordon V. Cormack, Professor at the David R. Cheriton School of Computer Science, University of Waterloo; Maura R. Grossman, Counsel, Wachtell, Lipton, Rosen & Katz; Jim Wagner, Chief Executive Officer, DiscoverReady LLC.  Moderator: Maureen O’Neill, Vice President of Discovery Strategy, DiscoverReady LLC.

Cooperation: Choosing Your Battles

Mock hearing format

Many feel that protracted discovery battles waste time for no purpose. This session will provide attendees with an understanding of which disagreements to resolve with cooperation, and which are worth fighting on behalf of your client.

Panelists are: Anne Kershaw, Founder, A. Kershaw, P.C., [Role: Attorney]; Gail Gottehrer, Partner, Axinn, Veltrop & Harkrider LLP, [Role: Attorney]; David J. Waxse, United States Magistrate Judge, District of Kansas.  Facilitator: Brooke J. Oppenheimer, eDiscovery Attorney, Axinn, Veltrop & Harkrider LLP.

12:30 – 1:30 PM:

Facing the Cliff: Can Proportionality Avert the eDiscovery Crisis?

Proportionality has been touted by industry cognoscenti as the bridge over the chasm of troubling eDiscovery disputes. Despite the hype, many doubt that proportionality can prevent courts, clients or counsel from plummeting into the abyss of spiraling costs and lengthy delays that often characterize discovery. For example:

  • Can predictive coding facilitate proportional discovery when lawyers are unwilling to share their training set of documents?
  • Should proportionality standards apply to the preservation of ESI to help address the high costs of retaining so much data?
  • Will the proportionality rule ever be used to rein in lawyers and judges that have distorted the standard of discovery from reasonableness to perfection?

Please join us as Philip Favro, Discovery Counsel, Symantec Corp. leads a distinguished panel of experts in a lively debate on these issues

Panelists are: Shawn Cheadle, Esq., General Counsel, Military Space, Lockheed Martin Space Systems Co.; Wendy Curtis, Esq., Corporate Counsel, Akin Gump Strauss Hauer & Feld LLP; Hon. Frank Maas, United States Magistrate Judge, Southern District of New York; Ariana J. Tadler, Esq., Partner, Milberg LLP. Moderator: Philip Favro, Discovery Counsel, Symantec Corp.

2:00 – 3:15 PM:

Predictive Coding – Emerging Best Practices

As predictive coding makes its way from the Nerdsville to Main Street, the industry has had to develop new methods and procedures to accommodate and leverage the technology. Similarly, new protocols have been drafted, negotiated and agreed. In this session, proposed guidelines for a predictive coding engagement will be presented. The panel members, drawing on their pioneering experience in predictive coding projects, will discuss and comment on the proposed guidelines, touching on legal and protocol considerations, technological capabilities and constraints, and requirements for statistical validity.

Panelists are: Bennett B. Borden, Chair, Electronic Discovery and Information Governance Section, Williams Mullen; Stephanie A. “Tess” Blair, Partner, Morgan, Lewis & Bockius LLP; Sean M. Byrne, Principal, Byrne Law Group; Thomas C. Gricks III, Partner, Schnader Harrison Segal & Lewis LLP. Moderator: Warwick Sharp, Vice President Marketing and Business Development, Equivio.

Key Ethical Concerns for Lawyers in e-Discovery

Attorneys conducting and supervising extensive electronic discovery find themselves negotiating an evolving ethical landscape that is impacted by ever increasing data volumes, a lack of bright line rules as to how and when those data volumes must be preserved, and constant changes in how the resultant data can be reviewed and produced using traditional and technology assisted review methodologies. This panel will address how lawyers can recognize and comply with their ethical obligations while:

  • Carrying out and supervising the duty to preserve relevant ESI
  • Meeting and conferring on e-discovery issues with the appropriate level of transparency and cooperation.
  • Managing the processing, review, and production of large volumes of documents and information.
  • Employing sophisticated e-discovery software tools and processes including technology assisted review
  • Accessing and using information from social media sites in discovery.

Panelists are: Michelle Spak, Senior Counsel, Duke Energy; M. James Daley, Partner, Daley & Fey, LLP; Jim Wagner, Chief Executive Officer, DiscoverReady LLC; Eric Cottrell, Partner, Parker Poe; Elizabeth Hyon, Assistant Vice President, Legal Barclays Capital; Craig Cannon, Global Discovery Counsel, Bank of America. Moderator: Matt Miller, SVP, Marketplace Leader & IP Practice Group Leader, DiscoverReady LLC.

Interoperability and Data Reuse in the ERA of Big Data and eDiscovery

IBM and HP both make the bold claim that 90% of all data ever created was produced in the last two years. Given the data deluge, corporate legal departments are starting to embrace the concept of interoperability including the need to capture institutional knowledge, seek greater team collaboration, repurpose and reuse data, and promote greater consistency in business process to achieve broader institutional benefits. The growth of data has also led to eDiscovery becoming a key part of the corporate information governance paradigm.

Learn from our experts on how to manage big data. Topics may include:

  • How enterprise information assets can be efficiently accessed and used by corporate legal departments while retaining and leveraging legal work product.
  • How technology and process can be combined to improve team collaboration and guard against institutional memory loss.
  • New technologies beyond clustering and predictive coding that the big data revolution may bring to the eDiscovery toolkit

Predictions on what the big data revolution and convergence with information governance mean for eDiscovery, corporate legal spend and operational efficiency.

Panelists are: David Leone, Esq., Director of LSS, Saul Ewing LLP; Chris Mellen, Digital Forensics PM, Digital Forensics & Advanced Analytics, SAIC; Chad Papenfuss, Litigation Support Manager, FTC; Susan Sparrow, Senior Program Manager General Dynamics Information Technology, HSCD, Justice Programs. Moderator: Anita Engles, VP of Product Marketing, Daegis.

3:45 – 5:00 PM:

The Unforseen: eDiscovery Project Management

The panel will discuss the project-management challenged that result from unforeseen events in e-discovery projects. We will discuss a diverse range of practical topics, including:

  • How do you respond to change in scope after the document review has started?
  • How do you adapt your TAR strategy when instructions change?
  • How to use prioritization, data analysis, and workflow to adopt to changes in budget or time available?

Panelists are: Matt Clarke, Shareholder, Ryley Carlock & Applewhite Document Control Group; Michael Fluhr, Discovery Counsel, Carroll Burdick & McDonough; Meagan Thwaites, Litigation Counsel, Chief Litigation Office, Boston Scientific Corporation; Vincent Miraglia, Chief Counsel, International Paper Company; Renato Opice Blum, CEO and Partner, Opice Blum, Bruno, Abrusio e Vainzof. Moderator: Manfred Gabriel, Forensic Principal, KPMG LLP.

State of the E-Discovery Software & Service Market

For those of us who remember e- discovery in its infancy, we can appreciate the growth of the industry. But no one back then predicted the absolute explosion of data at such mind boggling rates, the challenges it imposes, the changing business models in the fight for survival, progress on the information governance front and the growing pains practitioners and vendors across the board have faced. The analyst community will help us look back at major impacts and make predictions into the future, with their unbiased and pragmatic advice for practicing professionals.

Panelists are: Vivian Tero, Program Director Governance, Risk & Compliance (GRC) Infrastructure, IDC; Karl Schieneman, President, Review Less, LLC; Barry Murphy, Co-Founder, Principal Analyst, eDJ Group, Inc; Laura A. Zubulake, Author of Zubulake’s e-Discovery: The Untold Story of my Quest for Justice.

Predictive Coding for Investigations & Regulatory Matters

Over the last two years, there has been an avalanche of commentary on how automated review and predictive coding tools can and will be used to supplement or replace current e-discovery processes. This year, we’ve seen corporate and law firm clients actually dip their toes into the pool of automation, only to face resistance from opponents, mostly due to lack of understanding of automation.

We will focus our discussion on how to tackle:

  • Your duty to explain your use of automation in various cases, including as a way to organize data in a “produce all” request vs. a targeted production
  • Regulators’ use of Technology Assisted Review (“TAR”) on inbound productions, and how it may affect your outbound strategies
  • Best use cases for using predictive coding in internal investigations such as insider trading, where those under investigation are likely to use code rather than keywords

Panelists are: Marla Bergman, Vice President, Assistant General Counsel, Legal and Internal Audit, Goldman Sachs; Jim Wagner, Chief Executive Officer, DiscoverReady LLC. Moderator: Amy Hinzmann, SVP – Financial Services Practice Group Leader, Marketplace Leader, DiscoverReady LLC.

What is a Quality eDiscovery Process and How Do You Defend It?

The lack of formalized standards in eDiscovery poses challenges with respect to both methodology and defensibility. With the high stakes of litigation, growing expectations on the part of the judiciary, and the increasing frequency of spoliation motions, the components of the eDiscovery process continue to be susceptible to attack. As a result, litigants are often forced to focus on defense of their process, rather than the merits. Moreover, courts are frequently asked to evaluate the reasonableness of a particular process in retrospect, only after a party has made a significant investment in technology and resources. These issues should be considered and faced head on, from the inception of a matter.

This session is designed to provide practical guidance on how to develop a defensible eDiscovery process and how to withstand an attack. It will focus on the most frequently challenged aspects of the eDiscovery process and address such questions as:

  • What aspect of the eDiscovery process are most at risk of challenge?
  • What steps can parties take proactively to avoid an attack on their process?
  • What showing must be made before an eDiscovery process can be attacked?
  • How are these challenges likely to be made in motion practice and case management conferences?
  • What do parties need to submit to the court in defense of their process?
  • What standards govern judicial scrutiny and evaluation?
  • Is there a need for formal process standards and, if so, is it possible to develop them at this point in time?
  • What impact would potential new standards have on the vendor and legal community?

Panelists are: David Horrigan, Esq., Analyst, E-Discovery and Information Governance, 451 Research, a division of The 451 Group; Jason R. Baron, Director of Litigation, National Archives and Records Administration; Lauren Schwartzreich, E- Discovery Counsel, Littler Mendelson; Mira Edelman, Discovery Counsel, Google. Moderator: Doug Stewart, EnCE, Vice President of Technology and Innovation, Daegis.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

eDiscoveryDaily will also be “tweeting” periodically throughout LTNY, so feel free to check out our updates at twitter.com/Cloud9Discovery.

So, what do you think?  Are you planning to attend LTNY this year?  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.

Is 31,000 Missed Relevant Documents an Acceptable Outcome? – eDiscovery Case Law

It might be, if the alternative is 62,000 missed relevant documents.

Last week, we reported on the first case for technology assisted review to be completed, Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, in which predictive coding was approved last April by Virginia State Circuit Court Judge James H. Chamblin.  Now, as reported by the ABA Journal (by way of the Wall Street Journal Law Blog), we have an idea of the results from the predictive coding exercise.  Notable numbers:

  • Attorneys “coded a sample of 5,000 documents out of 1.3 million as either relevant or irrelevant” to serve as the seed set for the predictive coding process,
  • The predictive coding “program turned up about 173,000 documents deemed relevant”,
  • The attorneys “checked a sample of about 400 documents deemed relevant by the computer program. About 80 percent were indeed relevant. The lawyers then checked a sample of the documents deemed irrelevant. About 2.9 percent were possibly relevant”,
  • Subtracting the 173,000 documents deemed relevant from the 1.3 million total document population yields 1,127,000 documents not deemed relevant.  Extrapolating the 2.9 percent sample of missed potentially relevant document to the rest of the documents deemed non relevant yields 32,683 potentially relevant documents missed.

“For some this may be hard to stomach,” the WSJ Law Blog says in the article. “The finding suggests that more than 31,000 documents may be relevant to the litigation but won’t get turned over to the other side. What if the smoking gun is among them?”

However, the defendants, in arguing for the use of predictive coding in this case, asserted that “manual review of the approximately two million documents at issue would be extremely costly while locating only about 60 percent of potentially relevant documents”.  Of course, the rise in popularity of technology assisted review is not only due to the cost savings but also the growing belief of increased accuracy over human review as concluded in the oft-cited Richmond Journal of Law and Technology white paper from Maura Grossman and Gordon Cormack, Technology-Assisted Review in e-Discovery can be More Effective and More Efficient than Exhaustive Manual Review.

Assuming that the defendants’ effectiveness estimate of manual review is reasonable, then it could be argued that more than 62,000 relevant documents could have been missed using manual review at a much higher cost for review.  While we don’t know what the actual number of missed documents would have been, it’s certainly fair to conclude that the predictive coding effort saved considerable review costs in this case with comparable, if not better, accuracy.

There will be several sessions at Legal Tech® New York 2013 starting tomorrow discussing aspects of predictive coding.  For a preview of LegalTech, click here.

So, what do you think?  What do you think of the results?  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.

Has the Super Bowl Pregame Show Started Yet? How about the LegalTech Pregame Show? – eDiscovery Trends

Each year, it seems that the pregame show for the Super Bowl gets longer and longer.  However, as the Super Bowl is slated for next Sunday, it hasn’t started – yet.  However, with Legal Tech® New York 2013 slated to start next Tuesday, maybe it’s appropriate to have a “LegalTech Pregame Show”!  Leave it to us to link legal technology with the biggest football game of the year!

Next week, as we always do, eDiscoveryDaily will post each day about the activities and sessions of the day at the show related to eDiscovery.  But, here are a few tidbits to get you excited for next week’s show:

  • According to the Exhibitors page, there are at least 225 exhibitors at the show, same number we reported last year.  So, there are plenty of providers to check out in a variety of areas, including eDiscovery.
  • Performing a “find” on the LTNY conference schedule for “discovery” or “information governance” yields 135 total hits.  So, there will be plenty to talk about at the show.
  • You can download a LegalTech app to your iPhone, iPad or Android for the show.  It provides a veritable plethora of options, from viewing the exhibitors and tracking which ones you’ve seen (or want to bookmark to see), viewing session details and adding sessions that you plan to attend to your own phone calendar and checking out the LegalTech Twitter feed.  There’s even a “Local Places” icon to view everything from attractions to bars and lounges to dining to shops in the area!  Just go to the app store for your device and search for “legaltech”.

eDiscoveryDaily will also be interviewing several eDiscovery thought leaders again this year and publishing the interviews in the coming weeks.  We will also be tweeting from the show from our @cloud9discovery Twitter handle.

Speaking of CloudNine Discovery, we will be exhibiting at the show again for the third year in a row (booth #2006)  We will be giving away a cool vibration speaker that connects to devices via USB connection and also can play tunes from a micro SD card.  We’ll be demonstrating the speaker by playing tunes periodically during the show.  We will have other giveaway items as well, including Frisbees that fold up into a pocket container and open up with an impressive “fwump” when they’re pulled out of the container.  We’re the “fun” booth at the show, so stop by!

We will also be previewing the initial release of the mobile version of OnDemand®, our eDiscovery review application, at the show and will also be offering a special version of our FREE No Risk Trial of OnDemand for the first data set on any new OnDemand project.  It’s a unique “try it for free” program.

We look forward to seeing everybody at the show!

So, what do you think?  Are you attending LegalTech next week?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © CBS Sports

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.

Another Social Media Request Denied as a “Carte Blanche” Request – eDiscovery Case Law

After last week’s recap of 2012 cases, it’s time to start discussing cases in 2013!

In Keller v. National Farmers Union Property & Casualty Co., No. CV 12-72-M-DLC-JCL, (Dist. Court, D. Montana Jan. 2, 2013), the defendants filed a motion to compel the plaintiff’s to respond to various discovery requests.  While Magistrate Judge Jeremiah Lynch granted their request to compel the plaintiffs to produce medical records, he denied the defendant’s request “to delve carte blanche into the nonpublic sections of Plaintiffs’ social networking accounts”.

In this breach of contract case claiming damages in the form of unpaid medical expenses and $100,000 in uninsured motorist benefits against the defendant who insured the plaintiff under an automobile liability policy after an automobile accident, the defendant filed a motion to compel the plaintiffs to respond to various discovery requests.  As part of the motion to compel, the defendants requested “any and all records, reports or other documentation for each physician or other health care provider with whom Plaintiff Jennifer Keller has treated or consulted for the period beginning January 1, 2000 up to August 26, 2008”.  The defendants also requested “a full printout of all of [each of the plaintiff’s] social media website pages and all photographs posted thereon including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, myLife, Instagram and MeetMe from August 26, 2008 to the present”.

Noting that “Plaintiffs have not shown or argued that producing those records would be unduly burdensome, or that National Farmers Union propounded the discovery request for purposes of harassment”, Judge Lynch granted the motion to compel with regard to the medical records.  However, with regard to the request for social media web pages, while noting that the “content of social networking sites is not protected from discovery merely because a party deems the content ‘private’”, Judge Lynch referenced Tompkins v. Detroit Metropolitan Airport and noted a requirement for a “threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence”.  In this case, Judge Lynch ruled that the defendant “has not made the requisite threshold showing”, stating that the defendant “is not entitled to delve carte blanche into the nonpublic sections of Plaintiffs’ social networking accounts”.

Therefore, while granting the defendant’s request that the “Plaintiffs must provide a list of all the social networking sites to which they belong”, the remainder of the defendant’s request for social media information was denied, subject to their “right to renew the motion in the event it can make the threshold showing of relevance discussed above”.

So, what do you think?  Should the request have been granted?  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.

First Case for Technology Assisted Review to be Completed – eDiscovery Trends

As reported in Law Technology News by Evan Koblentz, it appears we have our first case in which predictive coding has been completed.

Last April, as reported in this blog, in Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, Virginia State Circuit Court Judge James H. Chamblin ordered that the defendants can use predictive coding for discovery in this case, despite the plaintiff’s objections that the technology is not as effective as human review.  The order was issued after the defendants issued a motion requesting either that predictive coding technology be allowed in the case or that the plaintiffs pay any additional costs associated with traditional review.  The defendant had an 8 terabyte data set that they were hoping to reduce to a few hundred gigabytes through advanced culling techniques.

According to the Law Technology News article, defense counsel at Schnader Harrison Segal & Lewis, and also at Baxter, Baker, Sidle, Conn & Jones, used OrcaTec’s Document Decisioning Suite technology and that OrcaTec will announce that the process is finished after plaintiff’s counsel at Jones Day did not object to the results by a recent deadline.

As reported in the article, eDiscovery analyst David Horrigan of 451 Research, expressed his surprise that Global Aerospace didn’t head in a different direction and wondered aloud why plaintiff’s counsel did not object to the results after initially objecting to the technology itself.

“It’s disappointing this issue has apparently been resolved on [plaintiff’s] missed procedural deadline,” he said. “Not unlike the predictive coding vs. keyword search debate in Kleen Products being postponed, if this court deadline has really been missed, we’ve lost an opportunity for a court ruling on predictive coding being decided on the merits.”

For more about what predictive coding is and its effectiveness, here are a couple of previous posts on the subject.  For other cases where predictive coding and other technology assisted review mechanisms have been discussed, check out this year end case summary from last week.

So, what do you think?  Does this pave the way for more cases to use technology assisted review?  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.

2012 eDiscovery Year in Review: eDiscovery Case Law, Part 4

As we noted the past three days, eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to admissibility and the duty to preserve and produce electronically stored information (ESI).  Today, let’s take a look back at cases related to sanctions and spoliation.

We grouped those cases into common subject themes and have reviewed them over the past few posts, ending today.  Perhaps you missed some of these?  Now is your chance to catch up!

SPOLIATION / SANCTIONS

All hail the returning champion!  I’ll bet that you won’t be surprised that, once again, the topic with the largest number of case law decisions related to eDiscovery are those related to sanctions and spoliation issues.  Of the 62 cases we covered this past year, almost a third of them (20 total cases) related to sanctions and spoliation issues.  We found them in a variety of sources, even The Hollywood Reporter!  Here they are.  And, as you’ll see by the first case (and a few others), sanctions requested are not always granted – at least not yet.

Sanctions for Violating Motion to Compel Production? Not Yet.  In Fidelity National Title Insurance Co. v. Captiva Lake Investments, LLC, where a party’s “conduct [did not] rise[ ] to the level of a willful violation of the order compelling production” because it was continually working toward the proper production of documents requested by its adversary, a court concluded that the adversary’s motion for sanctions was premature.

“Rap Weasel” Forced to Honor $1 Million Reward Offered via YouTube.  It isn’t every day that eDiscoveryDaily has reason to reference The Hollywood Reporter in a story about eDiscovery case law, but even celebrities have eDiscovery preservation obligations during litigation. In Augstein v. Leslie, New York District Judge Harold Baer imposed an adverse inference sanction against hip hop and R&B artist Ryan Leslie for “negligent destruction” of a hard drive returned to him by the plaintiff after a $1 million reward was offered via YouTube. On November 28, a jury ordered him to pay the $1 million reward to the plaintiff.

Plaintiff Hammered with Case Dismissal for “Egregious” Discovery Violations.  Apparently, destroying your first computer with a sledgehammer and using Evidence Eliminator and CCleaner on your second computer (when you have a duty to preserve both) are not considered to be best practices for preservation. Who knew? 😉

Rambus’ “Shred Days” Result in Sanctions Yet Again.  In Hynix Semiconductor Inc. v. Rambus, Inc., California District Judge Ronald Whyte used his discretion to fashion an appropriate fact-specific sanctions award after it found a party willfully destroyed evidence despite reasonably foreseeable litigation, it destroyed such evidence in bad faith, and the opposing party suffered prejudice.

Defendant Ordered to Retain Outside Vendor, Monetary Sanction Awarded.  In Carrillo v. Schneider Logistics, Inc., California Magistrate Judge David Bristow ordered the defendant to “retain, at its expense, an outside vendor, to be jointly selected by the parties, to collect electronically stored information and email correspondence”. The defendant was ordered to produce all surveillance videotapes responsive to plaintiffs’ discovery requests and monetary sanctions were awarded for plaintiff’s attorney fees and costs incurred as a result of the defendant’s discovery violations.

Government Document Productions Can Be Like Water Torture.  In Botell v. United States, 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.”

Defendant Appeals Sanctions, Only to See Sanction Amount Raised on Appeal.  In Multifeeder Tech. Inc. v. British Confectionery Co. Ltd., 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!

eDiscovery Sanctions Can Happen in Police Brutality Cases Too.  As reported in the Seattle Times, Pierce County (Washington) Superior Court Judge Stephanie Arend issued a $300,000 sanction against King County for failure to produce key documents illustrating the previous troubling behavior of a sheriff deputy who tackled Christopher Sean Harris and left him permanently brain-damaged. Judge Arend also indicated that the county would be liable for attorneys’ fees and possibly compensatory damages for the Harris family. This after King County had settled with the Harris family for $10 million in January 2011 during a civil trial in King County Superior Court.

When is a Billion Dollars Not Enough?  When it’s Apple v. Samsung, of course! According to the Huffington Post, Apple Inc. requested a court order for a permanent U.S. sales ban on Samsung Electronics products found to have violated its patents along with additional damages of $707 million on top of the $1.05 billion dollar verdict won by Apple last month, already one of the largest intellectual-property awards on record.

No Sanctions For Spoliation With No Bad Faith.  In Sherman v. Rinchem Co., the plaintiff in a defamation case against his former employer appealed the district court’s denial of both his summary judgment motion and request for an adverse inference jury instruction. The district court had decided the case under Minnesota law, which “provides that ‘even when a breach of the duty to preserve evidence is not done in bad faith, the district court must attempt to remedy any prejudice that occurs as a result of the destruction of the evidence.’” In contrast, as the Eighth Circuit pointed out, in this case where the parties had diversity, and a question remained as to whether state or federal spoliation laws were applicable, federal law requires “a finding of intentional destruction indicating a desire to suppress the truth” in order to impose sanctions.

Pension Committee Precedent Takes One on the Chin.  In Chin v. Port Authority of New York and New Jersey, the Second Circuit Court of Appeals ruled it was within a district court’s discretion not to impose sanctions against a party for its failure to institute a litigation hold.

More Sanctions for Fry’s Electronics.  In E.E.O.C. v Fry’s Electronics, Inc., Washington District Judge Robert S. Lasnik ordered several sanctions against the defendant in this sexual harassment case (including ordering the defendant to pay $100,000 in monetary sanctions and ordering that certain evidence be considered presumptively admissible at trial), but stopped short of entering a default judgment against the defendant. This ruling came after having previously ordered sanctions against the defendant less than two months earlier.

No Sanctions When You Can’t Prove Evidence Was Destroyed.  In Omogbehin v. Cino, the plaintiff claimed that the District Court erred in denying his motion for spoliation sanctions and appealed to the US Third Circuit Court of Appeals, but lost as the appellate court upheld the rulings by the district judge and magistrate judge.

“Naked” Assertions of Spoliation Are Not Enough to Grant Spoliation Claims.  In Grabenstein v. Arrow Electronics, Inc., Colorado Magistrate Judge Kristen L. Mix denied the plaintiff’s motion for sanctions, finding that their claims of spoliation were based on “naked” assertions that relevant eMails must exist even though the plaintiff could not demonstrate that such other eMails do or did exist. The motion was also denied because the plaintiff could not establish when the defendant had deleted certain eMail messages, thereby failing to prove claims that the defendant violated its duty to preserve electronic evidence. Judge Mix noted that sanctions are not justified when documents are destroyed in good faith pursuant to a reasonable records-retention policy, if that’s prior to the duty to preserve such documents.

Spoliation of Data Can Lead to Your Case Being Dismissed.  In In 915 Broadway Associates LLC v. Paul, Hastings, Janofsky & Walker, LLP, the New York Supreme Court imposed the severest of sanctions against the plaintiffs for spoliation of evidence – dismissal of their $20 million case.

Better Late Than Never? Not With Discovery.  In Techsavies, LLC v. WFDA Mktg., Inc., Magistrate Judge Bernard Zimmerman of the United States District Court for the District of Northern California sanctioned the defendant for repeated failures to produce responsive documents in a timely manner because of their failure to identify relevant data sources in preparing its initial disclosures.

The Zubulake Rules of Civil Procedure.  As noted in Law Technology News, the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, in two case rulings within a month’s time, one of which resulted in sanctions against one of the parties for spoliation of data.

eDiscovery Violations Leave Delta Holding the Bag.  In the case In re Delta/AirTran Baggage Fee Antitrust Litig., U.S. District Judge Timothy Batten ordered Delta to pay plaintiff attorney’s fees and costs for eDiscovery issues in consolidated antitrust cases claiming Delta and AirTran Holdings, Inc. conspired to charge customers $15 to check their first bag. Noting that there was a “huge hole” in Delta’s eDiscovery process, Judge Batten reopened discovery based on defendants’ untimely production of records and indications that there was overwriting of backup tapes, inconsistencies in deposition testimony and documents, and neglect in searching and producing documents from hard drives.

Burn Your Computer and the Court Will Burn You.  In Evans v. Mobile Cnty. Health Dept., Alabama Magistrate Judge William Cassady granted a motion for sanctions, including an adverse inference instruction, where the plaintiff had burned and destroyed her computer that she used during the time she claimed she was harassed.

Appeals Court Decides Spoliation Finding For Not Producing Originals is Bull.  In Bull v. UPS Inc., the Third Circuit court conceded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information”. However, it found that in this case, the District Court erred in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

2012 eDiscovery Year in Review: eDiscovery Case Law, Part 3

As we noted the past two days, eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to social media and the first cases approving technology assisted review.  Today, let’s take a look back at cases related to admissibility and the duty to preserve and produce electronically stored information (ESI).

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

ADMISSIBILITY AND DUTY TO PRESERVE AND PRODUCE

Admissibility of ESI, and the duty to preserve and produce it, is more at issue than ever.  Whether the issue is whether certain emails should be considered privileged, whether cloning of computer files is acceptable or whether text messages require substantiation of authorship, parties are disputing what ESI should actually be admissible in litigation.  Parties are also disputing when and where litigation holds are required and whether collection and search practices are acceptable.  In short, there are numerous disputes about data being produced and not being produced.  Here are (a whopping) sixteen cases related to admissibility and the duty to preserve and produce ESI:

Emails Between Husband and Wife Are Not Privileged, If Sent from Work Computer.  In United States v. Hamilton, the Fourth Circuit found that the district court had not abused its discretion in finding that e-mails between the defendant and his wife did not merit marital privilege protection because the defendant had used his office computer and his work e-mail account to send and receive the communications and because he had not taken steps to protect the e-mails in question, even after his employer instituted a policy permitting inspection of e-mails and he was on notice of the policy.

Defendant Had Duty to Preserve Despite No Physical Possession of Documents.  In Haskins v. First American Title Insurance Co., a court found that an insurance company had a duty to issue a litigation hold to its independent title agents because litigation was reasonably foreseeable and the duty to preserve extends to third parties, as long as the documents are “within a party’s possession, custody, or control.” Although it did not have physical possession, the insurance company controlled the agents’ documents because it had “‘the legal right or ability to obtain the documents from [the agents] upon demand.’”

Defendant Compelled to Produce Additional Discovery to Plaintiff.  In Freeman v. Dal-Tile Corp., a case alleging harassment and discrimination, among other claims, against her former employer Dal-Tile Corporation, the plaintiff brought a motion to compel, asserting that some of the defendant’s discovery responses related to its search for ESI were deficient.

Defendant Claiming Not Reasonably Accessible Data Has Some ‘Splaining To Do.  In Murray v. Coleman, the plaintiff alleged harassment and retaliation in connection with his employment with the New York State Department of Correctional Services (DOCS). This discovery dispute arose when the plaintiff requested access to certain electronic records, alleging that the defendants withheld them.

Cloning of Computer Files: When There’s a Will, There’s a Way.  In Matter of Tilimbo, 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.

Citing Rule 26(g), Court Orders Plaintiff’s Counsel to Disclose Search Strategy.  Our 501st post on the blog addresses S2 Automation LLC v. Micron Technology, where New Mexico District Judge James Browning ordered the plaintiff’s attorneys to disclose the search strategy their client used to identify responsive documents, based on Federal Rule 26(g) that requires attorneys to sign discovery responses and certify that they are “complete and correct.”

Judge Scheindlin Says “No” to Self-Collection, “Yes” to Predictive Coding.  When most people think of the horrors of Friday the 13th, they think of Jason Voorhees. When US Immigration and Customs thinks of Friday the 13th horrors, do they think of Judge Shira Scheindlin?  New York District Judge Scheindlin issued a decision on Friday, July 13, addressing the adequacy of searching and self-collection by government entity custodians in response to Freedom of Information Act (FOIA) requests.

Plaintiff Compelled to Produce Mirror Image of Drives Despite Defendant’s Initial Failure to Request Metadata.  In Commercial Law Corp., P.C. v. FDIC, Michigan District Judge Sean F. Cox ruled that a party can be compelled to produce a mirror image of its computer drives using a neutral third-party expert where metadata is relevant and the circumstances dictate it, even though the requesting party initially failed to request that metadata and specify the format of documents in its first discovery request.

Court Allows Third Party Discovery Because Defendant is an “Unreliable Source”.  Repeatedly referring to the defendant’s unreliability and untrustworthiness in discovery and “desire to suppress the truth,” Nebraska Magistrate Judge Cheryl R. Zwart found, in Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., that the defendant avoided responding substantively to the plaintiff’s discovery requests through a pattern of destruction and misrepresentation and therefore monetary sanctions and an adverse jury instruction at trial were appropriate.

Inadmissibility of Text Messages Being Appealed.  In October 2011, we covered a case – Commonwealth v. Koch – where a Pennsylvania Superior Court ruled text messages inadmissible, declaring that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender’s identity. That case, where Amy N. Koch was originally convicted at trial on drug charges (partially due to text messages found on her cell phone), is now being appealed to the state Supreme Court.

Another Case with Inadmissible Text Messages.  Above, we discussed a case where a Pennsylvania Superior Court ruled text messages inadmissible, declaring that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender’s identity. That case is now being appealed to the state Supreme Court. Today, we have another case – Rodriguez v. Nevada – where text messages were ruled inadmissible.

Court Grants Plaintiff’s Motion to Compel Mirror-Imaging of Defendant’s Computers.  In approving a motion for expedited discovery in United Factory Furniture Corp. v. Alterwitz, Magistrate Judge Cam Ferenbach granted the plaintiff’s motion for a mirror-imaging order after determining the benefit outweighed the burden of the discovery, and it denied as unnecessary the plaintiff’s motion for an order to preserve evidence and a preliminary injunction from spoliation of evidence.

Court Orders eDiscovery Evidentiary Hearing When Parties Are Unable to Cooperate.  A month ago, in Chura v. Delmar Gardens of Lenexa, Inc., Magistrate Judge David J. Waxse ordered an evidentiary hearing to discuss the sufficiency of the defendant’s search for ESI and format of production in response to the plaintiff’s motion to compel additional searching and production.

At The Eleventh Hour, Encrypted Hard Drive Is Decrypted.  In our previous post regarding the case U.S. v. Fricosu, Colorado district judge Robert Blackburn ruled that Ramona Fricosu must produce an unencrypted version of her Toshiba laptop’s hard drive to prosecutors in a mortgage fraud case for police inspection. Naturally, the defendant appealed. On February 21st, the 10th U.S. Circuit Court of Appeals refused to get involved, saying Ramona Fricosu’s case must first be resolved in District Court before her attorney can appeal. She would have been required to turn over the unencrypted contents of the drive as of March 1. However, at the last minute, Colorado federal authorities decrypted the laptop.

Court Rules Exact Search Terms Are Limited.  In Custom Hardware Eng’g & Consulting v. Dowell, the plaintiff and defendant could not agree on search terms to be used for discovery on defendant’s forensically imaged computers. After reviewing proposed search terms from both sides, and the defendant’s objections to the plaintiff’s proposed list, the court ruled that the defendant’s proposed list was “problematic and inappropriate” and that their objections to the plaintiff’s proposed terms were “without merit” and ruled for use of the plaintiff’s search terms in discovery.

KPMG Loses Another Round to Pippins.  As discussed previously in eDiscovery Daily, KPMG sought a protective order in Pippins v. KPMG LLP to require the preservation of only a random sample of 100 hard drives from among those it had already preserved for this and other litigation or shift the cost of any preservation beyond that requested scope. Lawyers for Pippins won a ruling last November by Magistrate Judge James Cott to use all available drives and Judge Cott encouraged the parties to continue to meet and confer to reach agreement on sampling. However, the parties were unable to agree and KPMG appealed to the District Court. In February, District Court Judge Colleen McMahon upheld the lower court ruling.

Tune in tomorrow for more key cases of 2012 and, once again, the most common theme of the year!

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

2012 eDiscovery Year in Review: eDiscovery Case Law, Part 2

As we noted yesterday, eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to proportionality and cooperation, privilege and inadvertent disclosures, and eDiscovery cost reimbursement.  Today, let’s take a look back at cases related to social media and, of course, technology assisted review(!).

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

SOCIAL MEDIA

Requests for social media data in litigation continue.  Unlike last year, however, not all requests for social media data were granted as some requests were deemed overbroad.  However, Twitter fought “tooth and nail” (unsuccessfully, as it turns out) to avoid turning over a user’s tweets in at least one case.  Here are six cases related to social media data:

Class Action Plaintiffs Required to Provide Social Media Passwords and Cell Phones.  Considering proportionality and accessibility concerns in EEOC v. Original Honeybaked Ham Co. of Georgia, Colorado Magistrate Judge Michael Hegarty held that where a party had showed certain of its adversaries’ social media content and text messages were relevant, the adversaries must produce usernames and passwords for their social media accounts, usernames and passwords for e-mail accounts and blogs, and cell phones used to send or receive text messages to be examined by a forensic expert as a special master in camera.

Another Social Media Discovery Request Ruled Overbroad.  As was the case in Mailhoit v. Home Depot previously, Magistrate Judge Mark R. Abel ruled in Howell v. The Buckeye Ranch that the defendant’s request (to compel the plaintiff to provide her user names and passwords for each of the social media sites she uses) was overbroad.

Twitter Turns Over Tweets in People v. Harris.  As reported by Reuters, Twitter has turned over Tweets and Twitter account user information for Malcolm Harris in People v. Harris, after their motion for a stay of enforcement was denied by the Appellate Division, First Department in New York and they faced a finding of contempt for not turning over the information. Twitter surrendered an “inch-high stack of paper inside a mailing envelope” to Manhattan Criminal Court Judge Matthew Sciarrino, which will remain under seal while a request for a stay by Harris is heard in a higher court.

Home Depot’s “Extremely Broad” Request for Social Media Posts Denied.  In Mailhoit v. Home Depot, Magistrate Judge Suzanne Segal ruled that the three out of four of the defendant’s discovery requests failed Federal Rule 34(b)(1)(A)’s “reasonable particularity” requirement, were, therefore, not reasonably calculated to lead to the discovery of admissible evidence and were denied.

Social Media Is No Different than eMail for Discovery Purposes.  In Robinson v. Jones Lang LaSalle Americas, Inc., Oregon Magistrate Judge Paul Papak found that social media is just another form of electronically stored information (ESI), stating “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms. I therefore fashion a single order covering all these communications.”

Plaintiff Not Compelled To Turn Over Facebook Login Information.  In Davids v. Novartis Pharm. Corp., the Eastern District of New York ruled against the defendant on whether the plaintiff in her claim against a pharmaceutical company could be compelled to turn over her Facebook account’s login username and password.

TECHNOLOGY ASSISTED REVIEW

eDiscovery vendors everywhere had been “waiting with bated breath” for the first case law pertaining to acceptance of technology assisted review within the courtroom.  Not only did they get their case, they got a few others – and, in one case, the judge actually required both parties to use predictive coding.  And, of course, there was a titanic battle over the use of predictive coding in the DaSilva Moore – easily the most discussed case of the year.  Here are five cases where technology assisted review was at issue:

Louisiana Order Dictates That the Parties Cooperate on Technology Assisted Review.  In the case In re Actos (Pioglitazone) Products Liability Litigation, a case management order applicable to pretrial proceedings in a multidistrict litigation consolidating eleven civil actions, the court issued comprehensive instructions for the use of technology-assisted review (“TAR”).

Judge Carter Refuses to Recuse Judge Peck in Da Silva Moore.  This is only the final post of the year in eDiscovery Daily related to Da Silva Moore v. Publicis Groupe & MSL Group.  There were at least nine others (linked within this final post) detailing New York Magistrate Judge Andrew J. Peck’s original opinion accepting computer assisted review, the plaintiff’s objections to the opinion, their subsequent attempts to have Judge Peck recused from the case (alleging bias) and, eventually, District Court Judge Andrew L. Carter’s orders upholding Judge Peck’s original opinion and refusing to recuse him in the case.

Both Sides Instructed to Use Predictive Coding or Show Cause Why Not.  Vice Chancellor J. Travis Laster in Delaware Chancery Court – in EORHB, Inc., et al v. HOA Holdings, LLC, – has issued a “surprise” bench order requiring both sides to use predictive coding and to use the same vendor.

No Kleen Sweep for Technology Assisted Review.  For much of the year, proponents of predictive coding and other technology assisted review (TAR) concepts have been pointing to three significant cases where the technology based approaches have either been approved or are seriously being considered. Da Silva Moore v. Publicis Groupe and Global Aerospace v. Landow Aviation are two of the cases, the third one is Kleen Products v. Packaging Corp. of America. However, in the Kleen case, the parties have now reached an agreement to drop the TAR-based approach, at least for the first request for production.

Is the Third Time the Charm for Technology Assisted Review?  In Da Silva Moore v. Publicis Groupe & MSL Group, Magistrate Judge Andrew J. Peck issued an opinion making it the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case. Or, so we thought. Conversely, in Kleen Products LLC v. Packaging Corporation of America, et al., the plaintiffs have asked Magistrate Judge Nan Nolan to require the producing parties to employ a technology assisted review approach in their production of documents. Now, there’s a third case where the use of technology assisted review is actually being approved in an order by the judge.

Tune in tomorrow for more key cases of 2012 and one of the most common themes of the year!

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

2012 eDiscovery Year in Review: eDiscovery Case Law, Part 1

2012 was quite a year from an eDiscovery standpoint, with a number of cases that impacted how organizations handle discovery.  There were case decisions that broke new ground (such as technology assisted review) and other cases that showed that many organizations still have a lot to learn in terms of inadvertent disclosures of privileged documents and sanctions assessed due to spoliation.

As we did last year, it seems appropriate to review cases from 2012 before moving forward to this year.  eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

Nonetheless, for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts (a few of them could be categorized in more than one category, so we took our best shot).  Perhaps you missed some of these?  Now is your chance to catch up!

PROPORTIONALITY / COOPERATION

There were certainly at least a handful of cases where proportionality of eDiscovery and cooperation between parties was at issue.  Here are three such cases:

Plaintiffs Should Pay for Extensive Discovery Prior to Class Certification.  In Boeynaems v. LA Fitness International, LLC, Pennsylvania District Judge Michael Baylson held that “where (1) class certification is pending and (2) the plaintiffs have asked for very extensive discovery, compliance with which will be very extensive, that absent compelling equitable circumstances to the contrary, the plaintiffs should pay for the discovery they seek . . . . Where the burden of discovery expense is almost entirely on the defendant, principally because the plaintiffs seek class certification, then the plaintiffs should share the costs.”

There’s a New Sheriff in Town – Judge Facciola.  In Taydon v. Greyhound Lines, Inc., District of Columbia Magistrate Judge John Facciola laid down the law to the parties in the case requiring cooperation on eDiscovery issues after “[t]he filing of forty-page discovery motions accompanied by thousands of pages of exhibits” and made it clear that the parties would be expected to “meet and confer in person in a genuine, good faith effort to plan the rest of discovery”.

Tennessee Court Orders Split eDiscovery Costs, Plaintiff Bond for Additional Discovery.  In considering the allocation of costs in this contentious business dispute, Tennessee Magistrate Judge Joe B. Brown (not to be confused with TV’s Judge Joe Brown) ordered the parties to split the expenses related to material they had not already produced in Lubber Inc. v. Optari, LLC.

PRIVILEGE / INADVERTENT DISCLOSURES

There were a few cases related to privilege issues, with parties failing the five factor test and paying the price for inadvertent disclosures of privileged documents (even when disclosing two privileged pages out of two million pages produced!).  Here are five cases where disclosure of privileged documents was addressed:

Another Disclosure of Privileged Documents Fails the Five Factor Test.  In Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., Ohio Magistrate Judge Norah McCann King found that the defendant had waived the attorney-client privilege was waived for 347 emails inadvertently produced, because they failed all factors in the five factor test to determine whether the inadvertent disclosure entitles the producing party to the return of the documents in question.

Counsel, The Inadvertent Disclosure “Buck” Stops With You.  In Blythe v. Bell, North Carolina Business Superior Court Judge James L. Gale denied a motion for an order compelling the return of privileged documents inadvertently disclosed by the defendants, ruling that privilege had been waived on those documents.

Privilege Waived Because Defendants Failed to Notice “Something Had Gone Awry” with Their Production.  In D’Onofrio v. Borough of Seaside Park, New Jersey Magistrate Judge Tonianne Bongiovanni denied the defendants’ motion for discovery to reclaim privileged documents that were inadvertently produced, finding that privilege was waived because the defendants failed to take reasonable measures to rectify the disclosure.

Inadvertent Disclosure By Expert Waives Privilege.  In Ceglia v. Zuckerberg (the case where Paul Ceglia is suing claiming 84% ownership of Facebook due to an alleged agreement he had with Mark Zuckerberg back in 2003), New York Magistrate Judge Leslie G. Foschio ruled that an information technology expert’s inadvertent disclosure waived the attorney-client privilege where the plaintiff could not show that it (1) took reasonable steps to prevent the disclosure of the e-mail and (2) took reasonable steps to rectify the error once it discovered the disclosure.

Two Pages Inadvertently Disclosed Out of Two Million May Still Waive Privilege.  In Jacob v. Duane Reade, Inc., Magistrate Judge Theodore Katz of the US District Court for the Southern District of New York found that a privileged, two-page email that was inadvertently produced did not have to be returned and that the privilege had been waived because the producing party, Duane Reade, had failed to request its return in a timely manner. According to Defendants’ counsel, the ESI production involved the review of over two million documents in less than a month; that review was accomplished with the assistance of an outside vendor and document review team.

EDISCOVERY COST REIMBURSEMENT

In 2011, there were several cases where the prevailing party was awarded reimbursement of eDiscovery costs.  Last year, that trend reversed somewhat as there were some cases where requests for reimbursement of eDiscovery costs was denied (or only partially granted).  Here are five cases, some of which fall into each category:

Court Reduces, But Allows, Reimbursement of eDiscovery Costs.  In Moore v. The Weinstein Company LLC, noting it had wide discretion to determine costs recoverable by a prevailing party under federal statutes providing for the taxation of costs, a court reduced costs awarded for eDiscovery expenditures based on its analysis of which costs were reasonable, necessary, and taxable.

Trend Has Shifted Against Reimbursement of eDiscovery Costs.  Last year, the trend seemed to be to award the prevailing party reimbursement of eDiscovery costs. Now, that trend appears to have been reversed with those requests being denied (or reversed) by the courts. Now, here is another case where reimbursement of eDiscovery costs was denied.

Google Awarded $1 Million from Oracle, But Denied Discovery Costs.  Judge William Alsup ordered Oracle to pay Google $1 million as reimbursement for Google’s fees for a court-appointed expert in their court battle over intellectual property and Google’s Android software. However, the ruling is only a partial victory for Google, who was seeking $4 million from Oracle in reimbursement of costs associated with the case.

No Race Tires on This Vehicle, Taxation of eDiscovery Costs Granted.  Last May, in Race Tires America, Inc. v. Hoosier Racing Tire Corporation, the winning defendants were awarded $367,000 as reimbursement for eDiscovery costs. (Hoosier Daddy!) But, then in March, an appellate court reversed all but $30,370 of those costs, implementing a narrow interpretation of 28 U.S.C. § 1920(4) for assigning those costs. Now, a new case addresses the issue of taxation of costs once again.

Not So Fast On eDiscovery Cost Reimbursement.  Today, we look at another eDiscovery ruling where a significant reduction in award amount was ruled.

We’re just getting started!  Tomorrow, we will cover cases related to social media and technology assisted review.  Stay tuned!

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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