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Doug Austin

No Bad Faith Means No Sanctions for Failing to Preserve Video of Altercation: eDiscovery Case Law

In Stovall v. Brykan Legends, LLC, No. 17-2412-JWL (D. Kan. Feb. 7, 2019), Kansas Magistrate Judge James P. O’Hara denied the plaintiff’s motion for sanctions based on the defendant’s alleged spoliation of a surveillance video that shows an altercation between the plaintiff and her supervisor, stating that “plaintiff has failed to meet the requirements of Fed. R. Civ. P. 37(e)(2)”.

Case Background

In this employment discrimination case involving claims of sexual harassment, the plaintiff was injured in 2016 in a physical confrontation with her supervisor (who was also the alleged harasser) and the confrontation was recorded on one of defendant’s surveillance cameras.  Shortly thereafter, the plaintiff filed a claim for workers’ compensation based on her alleged injuries and a few months after that, the plaintiff filed a discrimination charge with the Kansas Human Rights Commission (“KHRC”), which sent the defendant a letter advising that the destruction of records related to the charge was forbidden by law.

The plaintiff’s workers’ compensation claim was settled in January 2017.  In February 2017, plaintiff’s current counsel sent defendant a letter, stating plaintiff had retained them to represent her in connection with employment discrimination claims and advising defendant of its obligation to preserve records, videos, and files pertaining to plaintiff’s employment and discharge.  The plaintiff subsequently filed the suit in July 2017.

On July 3, 2018, plaintiff tendered a document request for, among other things, “surveillance footage, recordings or other video…that refer or relate to any events alleged in Plaintiff’s Complaint.”  The defendant responded that there “was a surveillance tape that depicted the altercation”, but that defendant “is unable to locate the tape.” The response also advised that a “copy or link” of the video was provided to the attorney representing the defendant in the workers’ compensation matter, but that “the link has expired.” The defendant’s representative (Rauschelbach) testified at his deposition that after the incident, he maintained a copy of the surveillance video in his desk drawer, but that he could no longer find it, despite “desperately looking”, leading to the plaintiff’s motion for sanctions.

Judge’s Ruling

In assessing the plaintiff’s motion, Judge O’Hara noted that “the parties agreed the surveillance video is a form of electronically stored information (“ESI”) subject to the preservation requirements of Rule 37(e)”.  As a result, he evaluated each of the factors of Rule 37(e) in turn:

  • Duty to Preserve: Judge O’Hara noted that “defendant concedes that as of October 11, 2016, the date on which it received notice of plaintiff’s discrimination charge from the KHRC, it ‘had an obligation to preserve the video.’” But, regarding the defendant’s argument that it had already “turned the video over to its insurance company” in connection with the workers’ compensation claim, Judge O’Hara said “The problem with defendant’s argument is that it does not account for the fact that defendant had two copies of the surveillance video. Defendant does not address the duty it had to preserve the copy of the video kept in Rauschelbach’s desk drawer.”
  • No Reasonable Steps to Preserve: Noting that the “defendant does not suggest any steps it took to preserve the video”, Judge O’Hara stated regarding the contention that sending a copy to its workers’ compensation insurer was a step to preserve that “The court knows of no case construing such an action as a step to preserve.”
  • No Ability to Restore or Replace: Noting that “plaintiff acknowledged during the pretrial conference that she had not issued a subpoena to the workers’ compensation insurer in an attempt to have a copy of the video retrieved off of their system or a computer hard drive”, Judge O’Hara stated that “the court concludes plaintiff has not proven the video cannot be replaced or restored” and in “a close call”, indicated he “has not found all three prerequisites to spoliation met”.
  • Bad Faith: Judge O’Hara noted that even if the plaintiff had met the spoliation prerequisites, she failed to demonstrate bad faith on the part of the defendant. Judge O’Hara stated “Although defendant’s failure to take steps to preserve the ESI may be negligent, even grossly negligent, nothing in the record suggests defendant intentionally lost the video.”

As a result, the plaintiff’s motion was denied.

So, what do you think?  Do you agree the plaintiff failed to demonstrate spoliation and bad faith?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

If you read my post on Thursday, you learned about the love of my life.  Today is her birthday.  Happy Birthday, honey!  I love you!

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.

How Many States Have Security Breach Notification Laws? You Might Be Surprised: Cybersecurity Trends

Usually, I end each blog post with “So, what do you think?”, but this time I’m starting with it.  How many states do you think have some sort of legislation requiring private or governmental entities to notify individuals of security breaches of information involving personally identifiable information (PII)?  Ten?  Twenty?  Thirty?  You might be surprised.

According to a post by the National Conference of State Legislatures (NCSL) (hat tip to Joe Hodnicki of Law Librarian Blog for the link), all 50 states, plus the District of Columbia, Guam, Puerto Rico and the Virgin Islands have enacted legislation requiring private or governmental entities to notify individuals of security breaches of information involving personally identifiable information.

That’s certainly good to know!

Security breach laws typically have provisions regarding who must comply with the law (e.g., businesses, data/ information brokers, government entities, etc); definitions of “personal information” (e.g., name combined with SSN, drivers license or state ID, account numbers, etc.); what constitutes a breach (e.g., unauthorized acquisition of data); requirements for notice (e.g., timing or method of notice, who must be notified); and exemptions (e.g., for encrypted information).

The NCSL post linked to above provides links to each of the states’ and territories’ legislation – some have a single law, code or statute to address the requirements, while others have more than one.  It’s a great reference if you ever have to determine what the laws are in a particular state or territory in terms of compliance requirements – which are already growing because of the General Data Protection Regulation (GDPR) that went into effect last year and the California Consumer Privacy Act (CCPA) which is slated to go into effect next January.  More and more, compliance discovery is becoming a strong emphasis for organizations that need to manage their risk.  It’s good to know that all of the states and territories have security breach laws – the next question is how well are they enforced?

So, what do you think?  Were you surprised that every state and territory has security breach laws?  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.

NY Appeals Court Extends Discoverability of Social Media Photos to “Tagged” Photos: eDiscovery Case Law

In Vasquez-Santos v. Mathew, 8210NIndex 158793/13 (N.Y. App. Div. Jan. 24, 2019), the New York Appellate Division, First Department panel “unanimously reversed” an order by the Supreme Court, New York County last June that denied the defendant’s motion to compel access by a third-party data mining company to plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of plaintiff engaging in physical activities and granted the defendant’s motion.

It’s rare that we can include the entire case opinion in our blog post, but, in perhaps the shortest case ruling we’ve ever covered, here is that case opinion.

“Private social media information can be discoverable to the extent it ‘contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims’ (Patterson v. Turner Const. Co., 88 A.D.3d 617, 618, 931 N.Y.S.2d 311 [1st Dept. 2011] ). Here, plaintiff, who at one time was a semi-professional basketball player, claims that he has become disabled as the result of the automobile accident at issue, such that he can no longer play basketball. Although plaintiff testified that pictures depicting him playing basketball, which were posted on social media after the accident, were in games played before the accident, defendant is entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury. That plaintiff did not take the pictures himself is of no import. He was “tagged,” thus allowing him access to them, and others were sent to his phone. Plaintiff’s response to prior court orders, which consisted of a HIPAA authorization refused by Facebook, some obviously immaterial postings, and a vague affidavit claiming to no longer have the photographs, did not comply with his discovery obligations. The access to plaintiff’s accounts and devices, however, is appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities (see Forman v. Henkin, 30 N.Y.3d 656, 665, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018]; see also Abdur–Rahman v. Pollari, 107 A.D.3d 452, 454, 967 N.Y.S.2d 31 [1st Dept. 2013] ).

So, what do you think?  Should discoverability of photos be extended to photos where the party is “tagged” in the photo or should privacy concerns weigh heavier here?  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.

My Love for What I Do: eDiscovery Love Story

It’s Valentine’s Day!  I hope you all have a special someone with which you can share Valentine’s Day.  As you can guess from the picture for this post, I do!  Regardless of that, I hope you all love what you do as much as I do.

Most people know me because of the blog, and you have to love eDiscovery to write about it every day.  I’ve always been a writer in my career, even when I started as a “Big 8” consultant years ago with Price Waterhouse (years before they became PwC).  Yes, it was that long ago.  Even back then, I wrote an article here or there.  I once wrote an article about CAR systems back in the mid-80s – Computer Assisted (microfilm) Retrieval (good luck finding that article today) – and it seemed like the wave of the future back then.  Our company wrote a program that interfaced with microfilm reader printers (does anybody remember those?) where you could search a database to identify documents you wanted to retrieve, then export out the document numbers into our program, which would identify the microfilm cartridge that the operator needed to load into the microfilm reader printer and, once loaded, the program would automatically advance to the selected pages and begin printing.  Then, the process would repeat for each additional microfilm cartridge in the document set.  It was really cool – when it worked right.  ;o)

Today, of course, I write (most) every day for this blog and, while it can sometimes be a bit of a burden, it also pays considerable personal benefits.  Before the blog, I would do a decent job of keeping up with industry trends – until I got really busy on a client project.  Then, I would let that industry research slide, unfortunately.  Now, because of the blog, I am forced to keep up with trends and that has paid considerable dividends in keeping me informed regarding trends in eDiscovery, cybersecurity and data privacy.  As Martha Stewart would say, “it’s a good thing.”

Believe it or not, however, the blog is only part of my job.  My “day job” is as VP of Products and Services with CloudNine, coordinating activities and roadmap for our LAW™, Concordance©, Explore™, and Review™ products (shameless plug warning!).  We just had a great summit meeting with our product team to talk about how to better manage feedback from customers to lead to product improvement.  We have a great team, which makes my job a lot easier!

I recognize that having a job that you truly love is a blessing and I feel truly blessed to love my job!

Of course, my true love is my wife Paige!  She’s the beautiful woman at the top of this blog and the love of my life.  I could write many descriptive blog posts just about her and why she’s so great, but this is an eDiscovery blog, so I’ll leave it to tell her in person today just how great she is and how much I love her.  :o)

So, what do you think?  Do you love eDiscovery?  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.

Germans Order Facebook To Change How it Collects User Data: Data Privacy Trends

Two days, two stories about Germans finding fault with companies’ handling of personal data.

According to Law360 (Facebook Ruling Gives Antitrust Weight To Data Privacy, written by Ben Kochman – subscription required), Germany’s Federal Cartel Office ordered Facebook last week to give users the right to opt in or out before the company merges data gleaned from users’ activity on other websites and apps to their Facebook accounts. Facebook uses this type of data, including from its own WhatsApp and Instagram as well as from third-party websites with its “like” or “share” buttons, to amass detailed profiles on consumers that fuel its lucrative targeted advertising operation.

Facebook users can reasonably expect that the social network is monitoring its activity on the platform for targeted advertising purposes, the German regulator said. But to extend that tracking to third-party sites — including those that have the company’s invisible Facebook Analytics software installed — without asking users first amounts to “exploitative abuse,” it said, in which the company is abusing its unique position as a social media giant for which users have no real replacement.

“In view of Facebook’s superior market power, an obligatory tick on the box to agree to the company’s terms of use is not an adequate basis for such intensive data processing,” FCO President Andreas Mundt said in a statement announcing the ruling.

The FCO explained its logic in a Q&A attached to the decision. Even though users do not suffer a financial loss from Facebook’s data collection, “the damage for the users lies in a loss of control,” the regulator said.

“They are no longer able to control how their personal data are used,” the authority wrote. “They cannot perceive which data from which sources are combined for which purposes with data from Facebook accounts and used e.g. for creating user profiles.”

“Due to the combining of the data, individual data gain a significance the user cannot foresee,” it added.

Facebook immediately pushed back, arguing in a blog post that the FCO “underestimates the fierce competition we face in Germany,” including from YouTube, Snapchat and Twitter.  The ruling “misapplies German competition law to set different rules that apply to only one company,” wrote the post by Yvonne Cunnane, head of data protection for Facebook Ireland, and company Associate General Counsel Nikhil Shanbhag. Facebook vowed to appeal the case and has a month to do so.

“There’s a sentiment issue here. People are developing feelings about Facebook, especially after what happened with Cambridge Analytica,” Pam Dixon, executive director of the World Privacy Forum (a consumer privacy nonprofit) said. “I wonder if Facebook is having a tin ear here to what its customer base really wants.”

So, what do you think?  Is this just the beginning of data privacy reform?  And, will “zee germans” have anything else to say about data privacy soon?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Columbia Pictures Corporation

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.

In Today’s Privacy Environment, That’s the Way the (Website) Cookie Crumbles: Data Privacy Trends

It’s only been three weeks, but we’ve already talked plenty about the first big GDPR fine of €50 million (or about $56.8 million) fine to Google for failing to comply with GDPR.  Sure, you’re thinking “that’s Google, I can see how they got fined, but nothing to worry about here”.  Right?  Well, you may want to think again.

As covered in Alston & Bird’s Privacy and Data Security Blog (Google-Style GDPR Fines for Everyone? Bavarian DPA Conducts Website Cookie Practices Sweep, Announces Fines under Consideration, written by Daniel Felz; hat tip to Rob Robinson’s Complex Discovery blog for the link), last week, the Data Protection Authority (DPA) of the German state of Bavaria announced it was considering fining a number of companies under the GDPR for their website cookie practices.  None of these companies appear to be in Google-style tech industries.  The Bavarian DPA’s action potentially signals that cookies, user tracking, and online advertising are not a ‘tech industry issue,’ but instead a priority issue for companies irrespective of their industry – and one that can carry GDPR fine risk.

In an online publication, the Bavarian DPA announced it had conducted a sweep of 40 large companies’ website cookie and user tracking practices.  While the identities of these companies have not been published (as is common in Continental European agency investigations), the Bavarian DPA identified the industries in which the companies were active – and no company was identified as a technology company.  Following its sweep, the Bavarian DPA announced that none of the 40 companies it had audited had built GDPR-compliant cookie/tracking practices into their websites.  As a result, the Bavarian DPA has announced it is considering GDPR fines.  The companies audited were from industries ranging from online retail to sports to banking & insurance to media, even automotive & electronics and home and residential.

The Bavarian DPA found the following violations:

  1. Websites lacked the transparency needed for “informed” cookie consent. 30 of the 40 audited websites did not provide sufficiently transparent disclosures to users regarding the website’s use of tracking technology;
  2. No “prior” consent was collected from users. The Bavarian DPA indicated that for most of the 40 websites, cookie data was “automatically” sent data to third-party cookie providers as soon as the user visited the website;
  3. The consent obtained was not sufficiently “active”. The Bavarian DPA’s position is that cookies and “tracking scripts” should be blocked until “the user has actively consented.” The interesting thing here is that the Bavarian DPA noted that most of the 40 websites used cookie banners to inform users about their use of cookies, but that none of these banners resulted in effective consent being collected from the user.  As the article notes, it may be that none of the websites integrated a cookie-blocking function prior to ‘consent events’ being logged.

As the article notes, the larger point of the Bavarian DPA’s action is that cookie compliance appears to be becoming a front-burner issue for EU privacy regulators – and an issue that can generate fines.  Which means it should probably be a front-burner issue with companies out there as well.  Oh, and by the way, Alston & Bird’s blog also has a countdown to the effective date of the California Consumer Privacy Act (CCPA) — 328 days and counting by the time you read this, so get ready for more compliance challenges in the future.

So, what do you think?  Will this change how companies implement tracking cookies in their websites?  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 Non-Party’s Request to Quash Subpoena in Telecommunications Dispute: eDiscovery Case Law

In Fair v. Commc’ns Unlimited Inc., No. 4:17 CV 2391 RWS (E.D. Mo. Jan. 16, 2019), Missouri District Judge Rodney W. Sippel denied the motion to quash discovery filed by non-party Charter Communications (Charter), finding that the plaintiff had demonstrated that she had been unable to obtain the information from the defendants, that her request was not overbroad or unduly burdensome, that the information requested would not disclose personally identifiable information (PII) and that any sensitive or confidential information could be protected with redactions or a protective order.

Case Background

In this dispute regarding alleged misclassification of the plaintiff and other technicians as independent contractors, the court previously granted conditional certification to an opt-in class of Technicians who installed cable on behalf of the defendant.  On May 11, 2018, the plaintiff served a subpoena on Charter, noticing a 30(b)(6) deposition of a corporate representative and requesting four categories of documents: (1) any agreements between Charter and defendants, (2) applications used by Charter to track technicians, (3) technician information stored in those applications, and (4) the size, number, and types of emails exchanged between Charter and defendants during a three year period representing the window of time for which potential opt-in class members would have worked for Defendants.

On July 24, Charter filed this motion to quash the plaintiff’s subpoena, representing that she sought the same information from the defendants three times, and that she had not received any responsive documents by when she served the subpoena, or by August 7, when she filed her response in opposition. After the plaintiff’s second motion to compel against the defendants was granted, they agreed to provide the plaintiff with any agreements they had with Charter, but she continued to maintain “her entire subpoena to Charter is valid.”

Judge’s Ruling

Judge Sippel addressed each of Charter’s arguments for quashing the subpoena, as follows:

  • Any agreements or emails it has exchanged with Defendants and their employees are more conveniently obtained from Defendants: “Fair sought this information from the parties three times before seeking it from Charter”;
  • Fair’s request is overbroad, because it is not related to the narrow question of how Defendants pay their employees: “Charters’ application information, agreements, and emails are also necessary to demonstrate how much control Defendants exercised over the Technicians… As a result, Fair’s request is not overbroad or unduly burdensome.”;
  • Complying with the subpoena would violate customer privacy because it would reveal the addresses of customers: “The only data that Fair seeks from the tracking applications include Technicians’ contact information, identification numbers, and time stamp data…Fair also asks that Charter “identify” certain aspects of the tracking applications, but only in general terms… Charter’s PII argument is without merit.”;
  • The requested information includes sensitive and confidential commercial information: “if any of the requested documents would disclose sensitive or confidential commercial information, Charter can protect that information with redactions or a protective order.

As a result, Judge Sippel denied Charter’s motion to quash the plaintiff’s subpoena.

So, what do you think?  Was the judge correct in rebutting Charter’s objections?  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.

EDRM Releases the Final Version of its TAR Guidelines: eDiscovery Best Practices

During last year’s EDRM Spring Workshop, I discussed on this blog that EDRM had released the preliminary draft of its Technology Assisted Review (TAR) Guidelines for public comment.  They gave a mid-July deadline for comments and I even challenged the people who didn’t understand TAR very well to review it and provide feedback – after all, those are the people who would hopefully stand to benefit the most from these guidelines.  Now, over half a year later, EDRM has released the final version of its TAR Guidelines.

The TAR Guidelines (available here) have certainly gone through a lot of review.  In addition to the public comment period last year, it was discussed in the last two EDRM Spring meetings (2017 and 2018), presented at the Duke Distinguished Lawyers’ conference on Technology Assisted Review in 2017 for feedback, and worked on extensively during that time.

As indicated in the press release, more than 50 volunteer judges, practitioners, and eDiscovery experts contributed to the drafting process over a two-year period. Three drafting teams worked on various iterations of the document, led by Matt Poplawski of Winston & Strawn, Mike Quartararo of eDPM Advisory Services, and Adam Strayer of Paul, Weiss, Rifkind, Wharton & Garrison. Tim Opsitnick of TCDI and U.S. Magistrate Judge James Francis IV (Southern District of New York, Ret.), assisted in editing the document and incorporating comments from the public comment period.

“We wanted to address the growing confusion about TAR, particularly marketing claims and counterclaims that undercut the benefits of various versions of TAR software,” said John Rabiej, deputy director of the Bolch Judicial Institute of Duke Law School, which oversees EDRM. “These guidelines provide guidance to all users of TAR and apply across the different variations of TAR. We avoided taking a position on which variation of TAR is more effective, because that very much depends on facts specific to each case. Instead, our goal was to create a definitive document that could explain what TAR is and how it is used, to help demystify it and to help encourage more widespread adoption.”  EDRM/Duke Law also provide a TAR Q&A with Rabiej here.

The 50-page document contains four chapters: The first chapter defines technology assisted review and the TAR process. The second chapter lays out a standard workflow for the TAR process. The third chapter examines alternative tasks for applying TAR, including prioritization, categorization, privilege review, and quality and quantity control. Chapter four discusses factors to consider when deciding whether to use TAR, such as document set, cost, timing, and jurisdiction.

“Judges generally lack the technical expertise to feel comfortable adjudicating disputes involving sophisticated search methodologies. I know I did,” said Magistrate Judge Francis, who assisted in editing the document. “These guidelines are intended, in part, to provide judges with sufficient information to ask the right questions about TAR. When judges are equipped with at least this fundamental knowledge, counsel and their clients will be more willing to use newer, more efficient technologies, recognizing that they run less risk of being caught up in a discovery quagmire because a judge just doesn’t understand TAR. This, in turn, will further the goals of Rule 1 of the Federal Rules of Civil Procedure: to secure the just, speedy, and inexpensive determination of litigation.”

EDRM just announced the release of the final version of the TAR guidelines yesterday, so I haven’t had a chance to read it completely through yet, but a quick comparison to the public comment version from last May seems to indicate the same topics and sub-topics that were covered back then, so there certainly appears to be no major rewrite as a result of the public comment feedback.  I look forward to reading it in detail and determining what specific changes were made.

So, what do you think?  Will these guidelines help the average attorney or judge better understand TAR?  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.

Relying on Interpretation of the SCA, Appeals Court Reverses Subpoenas Against Facebook: eDiscovery Case Law

In Facebook, Inc. v. Wint, No. 18-CO-958 (D.C. App. Jan. 3, 2019), the District of Columbia Court of Appeals, stating that “[t]he plain text of the SCA (Stored Communications Act) thus appears to foreclose Facebook from complying with Mr. Wint’s subpoenas”, concluded that the appellee “has not established the existence of a serious constitutional doubt that could warrant application of the doctrine of avoidance” reversing the trial court’s order holding Facebook in civil contempt for refusing to comply with subpoenas served by appellee Daron Wint.

Case Background

The appellee was charged with murder in D.C. Superior Court. Before trial, he filed an ex parte motion asking the trial court to authorize defense counsel to serve subpoenas duces tecum on Facebook and a Facebook subsidiary for records, including the contents of communications, relating to certain accounts. Facebook objected, arguing that the SCA prohibits Facebook from disclosing such information in response to a criminal defendant’s subpoena. The trial court approved the subpoena request and held Facebook in civil contempt for failing to comply.

The case was argued back before the appellate court back in October 2018.

Appeals Court Ruling

In the appellate court opinion issued by Associate Judge McLeese, he noted that “In the trial court, Mr. Wint argued that if the SCA were interpreted to preclude Facebook from complying with the subpoenas at issue, then the SCA would be unconstitutional. Mr. Wint has not renewed that argument in this court, however, and that argument therefore is not before us. Rather, Mr. Wint has argued in this court only that the SCA is properly interpreted to permit Facebook to comply.”  He also noted this:

“The SCA broadly prohibits providers from disclosing the contents of covered communications, stating that providers “shall not knowingly divulge to any person or entity the contents” of covered communications, except as provided…The SCA contains nine enumerated exceptions to this prohibition…Mr. Wint does not rely on any of those exceptions, and none of them applies in the present case. The plain text of the SCA thus appears to foreclose Facebook from complying with Mr. Wint’s subpoenas.  The structure of the SCA points to the same conclusion.”

The opinion also noted that Section 2702 (Voluntary disclosure of customer communications or records) and Section 2703 (Required disclosure of customer communications or records) of the SCA “appear to comprehensively address the circumstances in which providers may disclose covered communications. Those circumstances do not include complying with criminal defendants’ subpoenas.”  The opinion also noted that “Authority from other jurisdictions also favors a plain-language reading of the SCA. As far as we have determined, every court to consider the issue has concluded that the SCA’s general prohibition on disclosure of the contents of covered communications applies to criminal defendants’ subpoenas.”

The appellee pushed for an alternative interpretation of § 2702, which addressed only the circumstances in which providers may voluntarily disclose covered communications and did not address compliance with court-ordered disclosures, such as subpoenas. In support of this interpretation, the appellee relied on six principal contentions, which were discussed in detail in the opinion. However, the opinion stated:

“Although some of Mr. Wint’s contentions have some force, on balance we are not persuaded by Mr. Wint’s argument.”

As a result, the appellate court reversed the trial court’s order holding Facebook in civil contempt for refusing to comply with subpoenas served by the appellee.

So, what do you think?  Does the SCA, which has been in effect for over thirty years, adequately the rights to request data from providers in 2019?  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.

Observations about Legaltech 2019 from Attendees, Part Two: eDiscovery Trends

As I’ve done the past three years, I reached out to several attendees of Legaltech New York (LTNY) 2019 (some of whom I met with during the show) to get their thoughts and impressions of this year’s show.  We had so many people respond that I decided to split their feedback into two posts.  Yesterday was the first half, here are the remaining observations.  And, no, I didn’t split this into two posts just so I could save myself another day of writing, my observations are at the bottom of this post.  ;o)

As always, these should be taken as their personal opinions and observations regarding the show, not those of their employer or clients (even when they’re talking about the cost of breakfast at the Hilton).  Here are additional observations from attendees of the show:

“My observation was that most companies are working on the same goal(s) that they were last year.  It appears that most companies are still working towards an integrated platform, from collection to production.  Some companies have made strides to making a more cohesive product while others have acquired the tools/products/companies to start their journey.  I didn’t hear as much about Relativity as I have in previous years though RelativityOne is still a product that most companies are ‘keeping an eye on’.  Overall, it was another great Legal Tech and crazy that it was warmer in NYC that most of the country.”

— Eric Kelting, Co-Founder, Complete Legal

“1. I felt like the event overall was extremely smaller than it’s ever been.

  1. I also think that the vendors are getting more creative out of necessity to drum up more engagements.
  2. They had good speakers but it’s time for a new chapter in our space. I think they should look at how to bridge a few gaps.
  3. 2019 is about Masters resolving these issues. We want to make sure the industry is getting what they need. New masters, new and exciting content and more.
  4. IBM is way over played these days. They have had the same keynote for two years. He came across as also tired of his own presentation.

All in all, we are in a unique time with legal and technology. Innovations are happening everyday while tried and true solutions are getting better. You have companies acquired which paves the way for new innovation and development. It will be one of the most interesting two years is my prediction.”

— Robert Childress, Founder of The Masters Conference

“This year’s Legalweek was a pleasant surprise after all of the changes and lack of enthusiasm we saw at last year’s show. My top observation is that I had numerous conversations around diversity and inclusivity that may have been spurred by The DAT File podcast Cat Casey and I did with Brandon Law the week before the conference and then fueled by the open letter from 170 general counsel that was posted at beginning of week. Overall, it was an excellent week that helped me reconnect with my network and meet new people with interesting perspectives on the growth of our industry. Additional observations are that more people asked me about personal branding, and I saw more corporations were in attendance bringing small teams to participate in sessions and learn more about eDiscovery.”

— Maribel Rivera, Marketing Consultant

“The highlight for me was that I paid $48 for oatmeal at the Hilton. I seem to have this problem at all Hilton hotels. You sit down for the buffet breakfast and they don’t tell you that it’s $48 whether you east a single raisin or five servings of scrambled eggs. All I ate was a $3.00 bowl of oatmeal and the bill was still $50.”

— Mike Quartararo, Managing Director, eDPM Advisory Services

“This year really seemed to solidify a trend we’ve been seeing at Legalweek for the past couple years—the real conference that happens outside of the conference.  While the expo floor will always be the best place to take in a bunch of new tech and bump into friends and connections, there seemed to be more events happening outside of the Hilton than ever before.  These also extended well beyond happy hours and lunches to bespoke programming like session tracks, hands-on exercises, and amazing guest speakers.”

— Shawn Gaines, VP of Marketing for Relativity

“I did some asking around, checking in with friends and colleagues.  Here is what emerged:

  • Many felt a chill in the air, and we aren’t just talking polar vortex. As one person remarked, ‘Not allowing folks to walk around for free (or nearly free) kills the value of the event, from my point of view.’ As someone else noted, ‘It would be nice to see smaller admission packages with educational tracks still attached.’ On the positive side? The addition of cyber cafes and more seating near the sessions and conference floor.
  • Acquisitions continue apace – OpenText’s acquisition of Catalyst being the most recent example – and private equity money keeps pouring in. While there are benefits here, people I talked with focused on the dangers, such as the stereotypical PE 3-year build-and-sell strategy that might ultimately hinder the industry more than help it.
  • Four key areas highlighted at the conference were cloud (Seems to have more eDiscovery vendors host the data in cloud… Most are primarily US based vendors serving US markets.), analytics (‘Visual analytics and dashboard seems to be more prominent in every eDiscovery tool I’ve seen.’), mobile (‘Continued interest in mobile device developments. Specifically emojis.’), and ease of use (‘I’ve seen a few vendors where they made their review platform very click friendly, which looks very primitive to me, but seems to appeal to the general reviewers.’).”

— George Socha, Managing Director, BDO

And, here are my observations from the show:

For the first time since I’ve been writing the eDiscovery Daily blog, I didn’t ask for a press pass this year.  I was simply too busy with customer and analyst meetings, coordinating our NineForum sessions at the booth and so forth.  So, I didn’t attend any sessions and don’t have specific feedback on any sessions.  I heard good things about some of the sessions and ALM certainly lined up some terrific speakers (as they always do), so I expect they were high quality.

As for what I did observe, the show definitely appears smaller and that was certainly reflected in the exhibit hall, which seemed to have considerably less exhibitors than in years past.  I know part of that trend is consolidation in the industry, but I also know of several companies still around that used to exhibit, but don’t anymore.  Why not?  Clearly, they don’t feel they’re getting the ROI that makes it worthwhile to do so.  Part of that could be attributable to ALM’s decision a few years ago to start charging for admission to the exhibit hall, part of that could be due to changing ways on how customers choose to learn about potential software and services options today.  I would be very interested to see ALM just try one year to go back to the free access to the exhibit hall (yes, I know this will mean a lot of people who have no interest in buying anything, but it might also bring in some more people who are, but don’t want to pay to learn about software and services) to see if that reverses a trend to bring back some exhibitors.  Certainly, it seems worth a try to reverse a trend toward shrinking attendance that threatens the very conference itself.

More and more, Legaltech has become about the meetings around the show itself and not the actual show (many of which are in suites at surrounding hotels).  I would be interested to find out what percentage of people come to Legaltech that never attend a session or visit the exhibit hall.  I’ll bet that percentage is growing…significantly.  There’s a big difference between people who are at Legaltech and the people who are in Legaltech – that second group seems to be shrinking every year.

So, what do you think?  Did you attend Legaltech last week?  What did you think of this year’s show?  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.