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Doug Austin

Court Rules “No Harm, No Foul” in Allowing Clawback After Protective Order Deadline: eDiscovery Case Law

In the case In re Abilify (Aripiprazole) Prod. Liab. Litig., No. 3:16-md-2734 (N.D. Fla. Sept. 17, 2018), Florida Magistrate Judge Gary R. Jones denied the plaintiff’s Disclosure Motion regarding two documents that defendant Bristol-Myers Squibb (BMS) claimed were privileged and inadvertently disclosed, stating that “[a]lthough BMS might not have followed the precise terms of the Protective Order”, “the one-day delay in sending the privilege log can charitably be described as a situation where the expression ‘no harm, no foul’ applies.”

Case Background

In this products liability case against pharmaceutical manufacturers, the plaintiffs’ used an internal BMS email and PowerPoint during the January 31, 2018, deposition of BMS’ executive director for Abilify marketing from February 2007-December 2008. The PowerPoint discussed, among other things, BMS’ Corporate Integrity Agreement (“CIA”).  During the deposition, BMS’ counsel objected on the grounds that the use of the PowerPoint contained “privileged . . . confidential information [that] was inadvertently produced, in particular the section that was drafted by and presented by legal.” BMS’ counsel expressly advised the plaintiffs before the conclusion of the deposition that they would be “exercising our clawback rights under our protective order.”

After the deposition was concluded BMS sent an email to the plaintiffs confirming their intent to claw back the email and PowerPoint as inadvertently produced.  While the email did not mention attorney-client privilege and did not contain a privilege log, BMS sent the plaintiffs a notice and associated privilege log on February 5 articulating the basis for clawing back the redacted email and PowerPoint attachment. BMS then produced redacted, replacement versions of the email and PowerPoint.  The plaintiffs claimed that BMS waived privilege because they failed to provide a written notice within two business days from the date of the deposition accompanied by a log articulating the privilege basis for the documents and also argued that the redacted portions of the documents were not privileged because the documents did not convey legal advice.

Judge’s Ruling

Evaluating the plaintiffs’ Disclosure Motion, Judge Jones stated: “Plaintiffs’ argument on timeliness fails for two reasons. First, as a practical matter Plaintiffs were notified at the deposition on January 31, 2018 that BMS asserted a privilege over the documents based upon the fact that a section of the PowerPoint had been prepared by and presented by an attorney. BMS reaffirmed its assertion of its rights under the clawback that same day on January 31, 2018, when it sent a confirming email to Plaintiffs. While the confirming email was not accompanied by a privilege log, there was no mystery at that point that BMS asserted a privilege and sought to claw back the document, as it was entitled to do under the Protective Order.”  While noting that the Protective Order required written notification accompanied by a privilege log within two business days on the deposition (and BMS’ second email wasn’t until the third business day), Judge Jones stated: “Although BMS might not have followed the precise terms of the Protective Order, in the Court’s view the one-day delay in sending the privilege log can charitably be described as a situation where the expression ‘no harm, no foul’ applies. Plaintiffs cannot point to any prejudice they suffered or could have suffered as a result of the receipt of a privilege log one day late, which simply confirmed the privilege timely raised by BMS at the deposition and then confirmed in writing the same day.”

Noting that BMS’ in-house counsel not only participated in the preparation of the PowerPoint, but also that the PowerPoint was part of a presentation by Senior BMS counsel made to BMS management employees, Judge Jones upheld BMS’ privilege designation of the materials and denied the plaintiffs’ Disclosure Motion.

So, what do you think?  How much leeway should be given to inadvertent disclosures when they fall outside of the parameters of a protective order?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

Judge Recommends Sanctions for Defendant Under FRCP 37(e)(1): eDiscovery Case Law

In Franklin v. Howard Brown Health Ctr., No. 17 C 8376 (N.D. Ill. Oct. 4, 2018), the Illinois Magistrate Judge, stating that “the defendant has had to concede that, at the very least, it bollixed its litigation hold – and it has done so to a staggering degree and at every turn”, recommended that the plaintiff’s motion for discovery sanctions be granted to the extent that the “parties be allowed to present evidence and argument to the jury regarding the defendant’s destruction/failure to preserve electronic evidence in this case”.

Case Background

In this case for workplace harassment and discrimination, this particular dispute began with the plaintiff’s document request, which required the defendant to produce emails and text messages exchanged between certain key parties involving the plaintiff.  The defendant referred plaintiff to a number of “emails” already produced, but the plaintiff was looking for “instant messages,” as this was the method the plaintiff alleged the individuals used to harass him, but the defendant produced only two of those, despite the fact that deposition testimony indicated that was the standard way employees communicated with one another and one of the key parties said he saved “instant messages” to his Outlook email folder (despite the defendant’s claims that they weren’t as a matter of course).

According to the plaintiff’s supervisor, the plaintiff specifically promised a lawsuit based on “racism, transphobia and sexism” among the staff as early as July 24, 2015, but the defendant’s attorney categorized that as a “vague threat”.  One of the plaintiff’s alleged harassers left the company a mere two days after that, but his computer was wiped within 7 days of his last day at work.  According to the defendant’s general counsel, the litigation hold was not instituted until August 28, 2015.  In the GC’s affidavit, she indicated that he instructed an IT administrator to remove the plaintiff’s computer from the wiping process, but apparently never followed up or looked at the computer (that IT administrator had also left the company and was also now suing the defendant) and that data was lost as well.  The defendant’s GC also never instructed anyone in the IT department to stop the auto-delete of any saved instant messages – as a result, “barely a handful” of them were produced.

Judge’s Ruling

Noting that the “failure to preserve electronic evidence is covered by Fed.R.Civ.P. 37(e)”, the Magistrate Judge said that “In the end, given at least what appears to be the defendant’s gross negligence – and that’s viewing things favorably to the defendant – the best route is that proposed by the Advisory Committee in its notes to the 2015 amendment to Fed.R.Civ.P. 37(e)(1), specifically, allowing the parties to present evidence to the jury regarding the situation that was caused by defendant’s faulty and failed litigation hold… Accordingly, it is recommended that parties be allowed to present evidence and argument to the jury regarding the defendant’s destruction/failure to preserve electronic evidence in this case, and that the jury be instructed as the trial judge deems appropriate.”

So, what do you think?  Is the recommendation an appropriate application of FRCP 37(e)(1)?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Also, it’s time for the Fall 2018 eDiscovery Business Confidence Survey on Rob Robinson’s Complex Discovery site.  This quarter’s survey is unique in the fact that it asks three additional questions beyond the standard nine business confidence questions asked during the previous eleven surveys. These new questions are focused on understanding operational business trajectories around the areas of days sales outstanding (DSO), monthly recurring revenue (MRR), and revenue distribution across customer bases.  The response period is between today and achievement of 66 responses or November 30, 2018 (whichever comes first).  66 is not a lot of responses, so you’ll want to get your response in quickly!  We’ll cover the results once they’re published.

Case opinion link courtesy of eDiscovery Assistant.

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

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

Court Plays Referee in Search Term Dispute Between Parties: eDiscovery Case Law

In Digital Ally, Inc. v. Taser Int’l, Inc., No. 16-cv-2032-CM-TJJ (D. Kan. Sept. 11, 2018), Kansas Magistrate Judge Teresa J. James granted in part and denied in part the defendant’s Motion to Compel ESI Discovery, sustaining in part the plaintiff’s overbreadth and relevance objections to specific defendant ESI Requests by providing a compromised scope between the defendant’s proposed searches (deemed to be overbroad) and the plaintiff’s proposed searches (most of which were deemed to be too narrow).

Case Background

In this patent infringement case, the parties agreed to limit each party’s email production requests to five custodians and to a total of five search terms per custodian per party.  The parties could not come to an agreement on the scope for four of the five search term Requests in Defendant’s Second Set of Requests for E-Mail Production for the plaintiff’s Chief Financial Officer.  The parties subsequently conferred and exchanged proposed revisions to the defendant’s ESI requests. Unable to reach an agreement, the defendant filed the instant motion, to which the plaintiff objected, citing that the terms proposed by the defendant were overbroad.

Judge’s Ruling

In each of the four disputed ESI requests, Judge James sustained the plaintiff’s overbreadth objection, but also rejected or modified the plaintiff suggested term in most cases as too narrow.  Here are the rulings on the four requests:

Request 2:

Defendant proposed:

“Compet!” and (“vievu” or “Safariland” or “watchguard” or “(watch /2 guard)” or “WG” or “ICOP” or “20!” or “vault” or “ivault” or “wireless” or “(wc /2 1000)” or “(wc /2 2000)” or “WMIC” or “MIC” or “extreme” or “TACOM” or “(signal! /2 device)” or “SPPM” or “flex” or “fleet” or “DVM” or “FirstVu” or “microvu” or “vulink” or “FleetVu” or “trigger” or “(auto /2 activat!)” or “strateg!” or “evidenc!” or “hardware” or “software” or “cloud” or “system” or “(law /2 enforcement)” or “military” or “advantage!” or “success!” or “fail!” or “win!” or “los!” or “bid” or “rfp” or “bundl!”)

Plaintiff proposed:

“Compet!” and (“vievu” or “Safariland” or “watchguard” or “(watch /2 guard)” or “WG”)

Judge James ruled: “Defendant’s ESI Request 2 shall be limited insofar as Plaintiff shall not be required to search CFO Heckman’s ESI for the term “Compet!” combined with any of the following other commonly used words: “extreme,” “trigger,” “strateg!,” “evidenc!,” “hardware,” “software” or “cloud” or “system” or “advantage!” or “success!” or “fail!” or “win!” or “los!” or “bid” or “rfp” or “bundl!””

Request 3:

Defendant proposed:

“Invest!” or “shareholder!” or “stock!” or “Roth” or “Gibson” or “Truelock” or “Searle” or “Fortress” or “FIG” or “Palmer” or “Shtein” or “Eriksmith” or “Aegis” or “Lubitz” or “Rockowitz” or “Fidelity”) AND (“acqui!” or “financ!” or “secur!” or “monet!” or “loan!” or “offer!” or “merg!” or “buy” or “sell” or “valuation!” or “patent!” or “licens!”)

Plaintiff proposed:

(“Invest!” or “shareholder!” or “stock!” or “Roth” or “Gibson” or “Truelock” or “Searle” or “Fortress” or “FIG” or “Palmer” or “Shtein” or “Eriksmith” or “Aegis” or “Lubitz” or “Rockowitz” or “Fidelity”) AND (“vulink” or “DVM” or “FirstVu” or “microvu” or “FleetVu”)

Judge James ruled: “The Court finds Plaintiff’s counterproposal is too restrictive of the terms following the “AND” in Request 3. Instead the Court will limit Request 3 to the following search-term combinations:

(“Roth” or “Gibson” or “Truelock” or “Searle” or “Fortress” or “FIG” or “Palmer” or “Shtein” or “Eriksmith” or “Aegis” or “Lubitz” or “Rockowitz” or “Fidelity”) AND (“acqui!” or “financ!” or “secur!” or “monet!” or “loan!” or “offer!” or “merg!” or “buy” or “sell” or “valuation!” or “patent!” or “licens!”).”

Request 4:

Defendant proposed:

(“cam!” or “!cam” or “product” or “vault” or “ivault” or “DVM” or “FirstVu” or “microvu” or “vulink” or “FleetVu” or “trigger” or “(auto /2 activat!)” or “bundl!”) AND (“financ!” or “net” or “revenue!” or “cost!” or “profit!” or “margin!” or “sale!” or “sell!” or “sold” or “royalt!” or “licens!” or “unit!” or “period” or “quarter” or “annual” or “monet!” or “balance” or “income” or “cash!”)

Plaintiff proposed:

“DVM” or “FirstVu” or “microvu” or “vulink” or “FleetVu” or “VuVault” AND (“financ!” or “net” or “revenue!” or “cost!” or “profit!” or “margin!” or “sale!” or “sell!” or “sold” or “unit!” or “period” or “quarter” or “annual” or “monet!” or “balance” or “income” or “cash!”)

Judge James ruled: “The Court sustains Plaintiff’s overbreadth objections to Defendant’s ESI Request 4 for the terms “product” and “bundl!” combined with generic and commonly used finance and business search terms after the “AND.” The Court finds these search-term combinations are overly broad and Plaintiff shall not be required to search its CFO’s ESI using these search-term combinations. The Court rejects Plaintiff’s counterproposal, but modifies Defendant’s ESI Request 4 so that Plaintiff shall not be required to search Heckman’s ESI for the terms “product” or “bundl!” combined with any terms after the “AND.””

Request 5:

Defendant proposed:

“Patent!” AND (“Cam!” or “!Cam” or “(auto /2 activat!)” or “compet!” or “strateg!” or “(auto /2 activat!)” or “auto-activat!” or “automatic-activat!” or “automatically-activat!” or “auto! activat!” or “9,253,452” or “9253452” or “452” or “vulink”)

Plaintiff: Objected to the proposed connector terms “cam!,” “compet!,” and “strategy”, arguing that the “cam!” term would capture any patent about camera, which was far broader than the subject matter of this case and argued the terms “compet!” and “strategy” would return any email mentioning patents and competition or strategy of any type.

Sustaining the plaintiff’s objections that the defendant’s request was overbroad, Judge James ruled: “Defendant’s Request 5 shall be limited to the following search-term combinations:

“Patent!” AND (“(auto /2 activat!)” or “(auto /2 activat!)” or “auto-activat!” or “automatic-activat!” or “automatically-activat!” or “auto! activat!” or “9,253,452” or “9253452” or “452” or “vulink”)”

So, what do you think?  When should courts step in and rule on search term disputes between parties?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

IoT Devices Lead to Suspect’s Arrest for Murder: eDiscovery Trends

Honestly, I don’t know why anyone would consider committing a violent crime these days.  There’s the use of ever-improving DNA technology that leads to the arrest of scores of alleged offenders each year – even if you’re not in the Combined DNA Index System (CODIS) database, you can still be identified as a suspect through your relatives via genealogy databases, as we’ve recently seen in the case of the Golden State Killer.  And, if your DNA doesn’t get you, an Internet of Things (IoT) device may, as evidenced in this case.

As reported by CNET (Murder victim’s Fitbit data leads to alleged killer’s arrest, written by Steven Musil), Karen Navarra’s Fitbit recorded a rapid rise in her heart rate before a sudden drop-off to nothing, offering San Jose police a clearer time frame of her death on Sept. 8, the San Francisco Chronicle reported Friday. 90-year-old Tony Aiello was arrested last month in connection with his 67-year-old stepdaughter’s death.

Investigators noticed Navarra was wearing a Fitbit and they turned to the company for any possible clues the device could provide. Police learned that Navarra’s heart rate spiked at 3:20 p.m. and stopped registering a heartbeat eight minutes later, the Chronicle reported.

Although Aiello has reportedly denied killing Navarra, nearby cameras captured images of Aiello’s car parked at Navarra’s home on Sept. 8 at the same time her Fitbit showed her heartbeat rapidly falling and stopping, the newspaper reported.

Of course, those “nearby cameras” could themselves be IoT devices (Ring doorbell, anybody?).  And, we covered a different case last year regarding the Fitbit of a murder victim that helped disprove her husband’s story regarding an “intruder” that he said shot her to death – that evidence helped lead to his arrest for her murder.  In another case covered on 48 Hours recently, a Wisconsin man’s Fitbit exonerated him of his girlfriend’s 2016 murder when it showed his movements during the time police say her body was dumped in a field.  Needless to say, IoT devices are becoming more and more prominent in criminal investigations and discovery.

Changing gears here, Rob Robinson, through his terrific Complex Discovery site, is certainly the king of compilations and analysis regarding eDiscovery trends and his latest analysis involves “an aggregation of results from fourteen surveys from leading ALM magazines ranging from Corporate Counsel to Texas Lawyer administered to online audiences and published as special supplements between November 2017 and October 2018.”  Rob took the sixteen eDiscovery-centric survey categories represented in the fourteen surveys and tracked all of the providers who received at least one vote as a top three provider (101 providers in all).

Twenty-five of those providers was voted a top three provider at least six times across the fourteen surveys and Rob has ranked them by the number of times they received a top three vote.  So, which provider was voted a top three provider the most times by participants in the fourteen ALM surveys?  Click here to find out.  :o)

So, what do you think?  Have you had a case that involved evidence from an IoT device?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

“Master” Your Knowledge of eDiscovery With This Conference in Washington DC Again This Year: eDiscovery Trends

It’s October!  The leaves are turning, the baseball playoffs are currently going on (with the Astros one step closer to making my prediction come true again).  And, it’s time for another The Master’s Conference DC event!  It’s almost two days 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 eDiscovery and the information life cycle.  This year’s Washington DC event includes nearly two days of educational sessions covers topics ranging from privacy to cybersecurity to social media to cloud computing.  GDPR, blockchain and big data are also significant topics for the event.

The event will be held on Tuesday, October 23 and Wednesday, October 24 at Sidley Austin LLP, 1501 K Street, N.W. #600, Washington, DC 20005.  It’s about three blocks away from the White House (anything happening over there these days?).  Registration begins at 8am each day, 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 11:15pm on Wednesday, October 24th.  I will be moderating a panel of eDiscovery experts to discuss the challenges that big data place on information governance and legal discovery professionals and potential approaches for addressing those challenges.  Hope you can join us!

Click here to register for the conference.  The cost to attend can be as low as $250 for nearly two days of terrific educational content.  So, if you plan to attend and haven’t registered yet (why not?), now is the time to do it.

This year, The Master’s Conference still has one more event scheduled for Orlando.  Click here for more information on remaining scheduled events for the year.

So, what do you think?  Are you going to be in Washington DC on October 23 and 24?  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.

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

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

Here’s a Webcast to Help You Get a “Clue” Regarding Your eDiscovery Process: eDiscovery Webcasts

As evidenced by some high-profile recent eDiscovery disasters, managing eDiscovery projects is more complex than ever. Not only have the volume and variability of ESI data sources increased dramatically, but there are often more stakeholders in eDiscovery projects today than characters on the board game Clue©. Successful eDiscovery today means not only meeting your obligations, but also making sure that each stakeholder in the process succeeds as well.  Here’s a webcast that can enable you to get a “clue” regarding your eDiscovery process – with a special guest!

Wednesday, October 31st at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Get a “Clue” Regarding Your eDiscovery Process. In this one-hour webcast that’s CLE-approved in selected states, we will discuss the various participants in the eDiscovery process, what motivates each of them, and best practices on how to avoid becoming the next high-profile eDiscovery disaster. Topics include:

  • The Process: Managing the Project from Initiation to Close
  • The Phases: Managing the Flow of ESI Before and During the Process
  • The Players: Goals and Objectives of Each eDiscovery Stakeholder
  • Whodunnit?: Lessons Learned from a Large Financial Institution’s Mistakes
  • Whodunnit?: Lessons Learned from a Government Entity’s Mistakes
  • Whodunnit?: Lessons Learned from a Medical Center’s Mistakes
  • Recommendations for Avoiding Your Own Mistakes
  • Resources for More Information

I’ll be presenting the webcast, along with Tom O’Connor.  But, this time, we will have a special guest — Mike Quartararo!  Mike is the founder and managing director of eDPM Advisory Services, a consulting firm providing e-discovery, project management and legal technology professional services to law firms, corporate legal departments and service provider organizations. He is also the author of the 2016 book Project Management in Electronic Discovery, which merges project management principles and best practices in electronic discovery.

To register for the webcast, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  Three guys with beards on the Wolfman’s favorite day, what could be better!  It’s a lead pipe cinch!  Get it?  :o)

So, what do you think?  Do you have a “clue” about how to avoid your own eDiscovery disaster?  If not, please join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Clue Board Game Image Copyright © Hasbro.

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

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

Court Denies Plaintiff’s Request for Sanctions for Defendant’s Failure to Preserve Surveillance Video: eDiscovery Case Law

In Ball v. George Washington Univ., No. 17-cv-0507 (DLF) (D.D.C. Sept. 27, 2018), District of Columbia District Judge Dabney L. Friedrich, denied the plaintiff’s motion for sanctions for allegedly destroying two surveillance videos, stating: “Because Ball has not proven—even by a preponderance of the evidence—that GW permanently stored the Lafayette Hall surveillance footage, the Court need not conduct further inquiry under Rule 37(e).”

Case Background

In this case for wrongful termination, negligence and violations of rights, the defendant considered surveillance footage from two days (July 13 and 14, 2015) that showed the plaintiff entering and exiting buildings on campus, during its investigation preceding the termination of the plaintiff’s employment.  The defendant produced a July 13 video of the plaintiff in one building and produced screenshots of the July 14 surveillance footage from another building, Lafayette Hall, but it did not produce videos of Lafayette Hall for either July 13 or July 14, which reportedly showed the plaintiff entering and exiting at different times than he had indicated on his time sheet.

According to declarations, the surveillance footage was recorded on network video recorders that automatically delete old footage as the recorders become full. The video recorders that stored the July 13 and 14 Lafayette Hall footage at issue typically delete footage every 30 days (and sometimes as early as 14 days) after recording. Defendant police officers routinely permanently download surveillance footage for use in criminal investigations; however, they download surveillance footage for Human Resources (HR) investigations only upon an HR investigator’s request.

In this case, the parties disputed whether the footage at issue was downloaded: the plaintiff contended that the surveillance footage was permanently stored on CDs and given to a member of the defendant’s HR department (Claude Owens), and ultimately to the defendant’s in-house counsel, arguing that the videos’ alleged non-existence showed that the defendant’s in-house counsel destroyed or lost the videos. The defendant countered that the surveillance footage was not permanently stored but instead was automatically overwritten within 30 days (and possibly 14 days) of recording.  While Owens “thought he might have given the tape to ‘the lawyers’”, a detective with the defendant’s police force (Detective Robinson) stated in a declaration that he never downloaded the Lafayette Hall sixth floor footage and had only showed and sent screenshots to the HR employee.

Judge’s Ruling

Judge Friedrich stated: “Although the evidence before the Court is unclear, the weight of the evidence tilts in favor of GW’s explanation. Robinson’s declaration, coupled with evidence that the envelope remained sealed until Romero opened it, supports a finding that the surveillance footage of Lafayette Hall was never downloaded from the video recorders. Robinson stated that he never downloaded the Lafayette Hall sixth floor footage…And Owens testified that neither he nor Wells ever opened the sealed envelope…To the extent that the deposition testimony of Wells and Owens provides any support for Ball’s theory, the evidence is speculative and inconclusive…Because Ball has not proven—even by a preponderance of the evidence—that GW permanently stored the Lafayette Hall surveillance footage, the Court need not conduct further inquiry under Rule 37(e).”

So, what do you think?  Should the defendant have preserved the video if it was used as evidence to terminate the plaintiff’s employment?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

The Sedona Conference Has Updated its Commentary on Information Governance: eDiscovery Best Practices

It’s been a busy year for The Sedona Conference® (TSC).  Already this year, TSC has published the Public Comment Version of its Principles and Commentary on Defensible Disposition, the Public Comment Version of their Primer on Social Media, Second Edition (which we discussed in our panel at Relativity Fest earlier this week), the Public Comment version of its Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations and the final version of its new Data Privacy Primer.  Now, TSC is releasing an update to its 2014 commentary on Information Governance.

On Wednesday, TSC and its Working Group 1 on Electronic Document Retention & Production (WG1) announced the publication of the Public Comment Version of The Sedona Conference Commentary on Information Governance, Second Edition.  In 2014, The Sedona Conference published its first edition of the Commentary on Information Governance which recommended a top-down, overarching framework guided by the requirements and goals of all stakeholders that enables an organization to make decisions about information for the good of the overall organization and consistent with senior management’s strategic directions.

This Second Edition of the Commentary accounts for the changes and advances in technology and law over the past four years; underscores the role of IG as part of and complimentary to the business, rather than something separate that adds overhead; and emphasizes the costs of eDiscovery which should drive organizations to focus on IG on the front end, resulting in eDiscovery that is more efficient, less painful, and which allows the organization to reap additional benefits from a business perspective. Additionally, this Second Edition also incorporates the knowledge and guidance embodied in the new and updated Sedona commentaries since 2014 such as The Sedona Principles, Third Edition and the above referenced Principles and Commentary on Defensible Disposition, which was spawned by the work on this commentary.

The structure is largely similar to the 2014 Commentary, with updated information in key places.  The eleven principles are virtually identical to the ones from 2014 (only principles 3 and 7 have slight word changes), so the foundation remains the same.  The eleven principles are:

  1. Organizations should consider implementing an Information Governance program to make coordinated, proactive decisions about information for the benefit of the overall organization that address information-related requirements and manage risks while optimizing value.
  2. An Information Governance program should maintain sufficient independence from any particular department or division to ensure that decisions are made for the benefit of the overall organization.
  3. All stakeholders’ views/needs should be represented in an organization’s Information Governance program.
  4. The strategic objectives of an organization’s Information Governance program should be based upon a comprehensive assessment of information-related practices, requirements, risks, and opportunities.
  5. An Information Governance program should be established with the structure, direction, resources, and accountability to provide reasonable assurance that the program’s objectives will be achieved.
  6. The effective, timely, and consistent disposal of physical and electronic information that no longer needs to be retained should be a core component of any Information Governance program.
  7. When Information Governance decisions require an organization to reconcile conflicting laws or obligations, the organization should act in good faith and give due respect to considerations such as data privacy, data protection, data security, records and information management (RIM), risk management, and sound business practices.
  8. If an organization has acted in good faith in its attempt to reconcile conflicting laws and obligations, a court or other authority reviewing the organization’s actions should do so under a standard of reasonableness according to the circumstances at the time such actions were taken.
  9. An organization should consider reasonable measures to maintain the integrity and availability of long-term information assets throughout their intended useful life.
  10. An organization should consider leveraging the power of new technologies in its Information Governance program.
  11. An organization should periodically review and update its Information Governance program to ensure that it continues to meet the organization’s needs as they evolve.

This Commentary is contained within a 53 page PDF file, so it’s certainly a reasonable read (less than one court case we recently covered).

The Sedona Conference Commentary on Information Governance, Second Edition is open for public comment through December 5, 2018. As always, questions and comments regarding the Commentary may be sent to comments@sedonaconference.org and the drafting team will carefully consider all comments received and determine what edits are appropriate for the final version.  You know the drill.

Also, I’m sad to pass along the news that Nigel Murray passed away a couple of nights after his two-year battle with brain cancer.  I did not know Nigel well, but, in the couple of times I encountered him (including this thought leader interview a few years ago), I found him delightful and very engaging. Craig Ball has written a wonderful tribute to Nigel on his Ball in Your Court blog here.  My condolences to his family and to all in the profession who had the good fortune to work with him or get to know him personally or professionally.

So, what do you think?  Does your organization have a formal Information Governance program?  As Tom O’Connor and I discussed in a recent webcast, many organizations don’t.  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Court Denies Party’s Request to Produce in Native Format Instead of TIFF: eDiscovery Case Law

In the case IN RE SYNGENTA AG MIR 162 CORN LITIGATION, MDL 2591, No. 16-2788-JWL (D. Kan. Sept. 25, 2018), Kansas Magistrate Judge James P. O’Hara, stating that “there is no dispute that documents in TIFF format are easier to work with and enable depositions and court proceedings to run more smoothly”, denied the request of party Louis Dreyfus Company Grains Merchandising LLC (LDC) to relieve it from the production requirements of the case’s ESI Protocol Order to produce electronically stored information (ESI) in TIFF image file format and instead allow LDC to produce in native format.

Case Background

In this multi-district corn litigation, on August 16, 2018, the Court ordered LDC to complete its document production by September 6.  On August 31, LDC sought an extension, asserting that technical complications and infrastructure limitations made it impossible to meet the deadline. There was no mention in LDC’s motion or supporting briefs of any difficulty LDC would have producing the documents in TIFF format as required by the ESI Protocol Order. The court granted LDC’s request and ordered LDC to produce “as many documents as possible (which should be most)” by September 28; and to produce the remainder of the documents by October 12.

On September 5 and 11, LDC produced a large number of documents in native format, stating it did so in order to get the documents to Syngenta as expeditiously as possible, asserting that converting documents to TIFF adds “substantial time to production.”  Syngenta complained to LDC about the production format on September 11, noting that production of documents in native format—with only the first page of a document numbered, rather than page-by-page bates numbering—creates confusion when a party wishes to reference a particular page of a document during depositions, in court filings, and at trial.

In a September 24 letter brief, LDC asked the court, for the first time, to relieve it from the production requirements of the ESI Protocol Order, arguing that the exception to the ESI production protocol applied because LDC “has been required to produce a huge number of documents under extreme time pressure” and characterizing the lack of Bates stamps on documents for depositions as a “minor inconvenience” to Syngenta.  LDC stated it “is converting these files to TIFF format, but Syngenta is unreasonably insisting that all documents be in TIFF before the deadline.”

Judge’s Ruling

Judge O’Hara stated: “LDC’s arguments are unpersuasive. First, there is no dispute that documents in TIFF format are easier to work with and enable depositions and court proceedings to run more smoothly. As recognized by the Sedona Conference, they allow a party to refer to particular portions of a document—perhaps in designating confidentiality or directing a witness to particular language—by page number.

Second, the ESI Protocol Order requires a party seeking to deviate from the image/TIFF-format production to “promptly” notify the requesting party as soon as it identifies a source of data to which the protocol should not apply (because it would be unduly burdensome or impractical). Here, LDC did not notify Syngenta or the court before producing documents in native format. LDC made no mention of its perceived formatting production issue in its previous briefs addressing Syngenta’s proposed search terms or seeking extensions of the production deadlines.

Third, LDC has offered no evidence to support its “burdensome” and “impracticality” arguments. To the contrary, LDC informed Syngenta on September 14, 2018, that converting the native files in its previous document productions would take approximately two weeks. Thus, the first TIFF production should occur by the September 28, 2018 deadline for the majority of LDC’s documents. As for documents yet to be produced, LDC does not state how long producing them in the first instance in TIFF format (as opposed to native format with a subsequent conversion) might take its vendor. Accordingly, the court is not convinced that it is impossible for LDC to meet the October 12, 2018 deadline for final production.”

Noting that “the court is determined to keep this case moving forward” to keep depositions on schedule, Judge O’Hara denied LDC’s request that it be permitted to complete its document production in native format only by the October 12, 2018 deadline.

So, what do you think?  Should the court have given LDC more leeway or time to produce the documents in TIFF format?  Should the parties have been able to work out a document numbering scheme for documents to be referenced in depositions?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

Wednesday’s Relativity Fest Sessions: eDiscovery Trends

As we noted yesterday and Monday, the 2018 Relativity Fest conference is going on this week, CloudNine will once again be here as a Silver Sponsor and I have been covering the show for eDiscovery Daily.  Let’s check out sessions lined up for today, the last day of the conference.

This year, Relativity Fest has been September 30 through October 3 in Chicago at The Hilton Chicago.  As a development partner in the Relativity ecosystem, CloudNine is at the conference and will be there today to provide demonstrations of our Outpost for Relativity capability that automatically ingests and loads data into Relativity based on your specified criteria.  Also, I had a great time speaking at the Social Media session yesterday, moderated by Phil Favro, with Amy Sellars, Craig Carpenter and Ignatius Grande!

Here is one of the eDiscovery-related sessions for today (it’s a short day):

9:00 AM – 10:00 AM:

LIE230322 – e-Discovery Law and Practice: Case Studies in Cooperation

From The Sedona Conference Cooperation Proclamation and the judges across the nation who have endorsed it to the 2015 amendments to the Federal Rules of Civil Procedure, cooperation in e-discovery has become an important consideration in the United States and internationally as well. However, is cooperation in e-discovery even possible in an adversarial system? Even if it is possible, is it practical? How can you cooperate with an adversary? What about transparency in the process? What do other nations think about cooperation in e-discovery and e-disclosure?

Join us for a case study in e-discovery cooperation where e-discovery teams for both plaintiffs and corporate defendants discuss how they used technology and e-discovery workflows to not only conduct e-discovery with cooperation, but do it better, faster, and cheaper. This session has been submitted for CLE accreditation.

This session has been submitted for CLE accreditation.

Speakers Include: David Horrigan – Discovery Counsel and Legal Education Director, Relativity, Chad Roberts – Discovery Counsel, eDiscovery Co-Counsel, PLLC, Kelly Twigger – Principal, ESI Attorneys LLC, Suzanne Clark – Discovery Counsel, eDiscovery Co-Counsel, PLLC, Kathleen Porter Kristiansen – Senior Consultant and Solicitor, Risk Management & Cyber Security, Advanced Discovery.

Hopefully, you enjoyed Relativity Fest this year!  If not, there’s always next year!

So, what do you think?  Did you attend Relativity Fest this year?  Was it worthwhile?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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