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Doug Austin

Here’s a Webcast to Help Plaintiff’s Attorneys Conquer Their Biggest eDiscovery Challenges: eDiscovery Webcasts

As we learned in Tom O’Connor’s recent five part blog series, it seems as though the eDiscovery deck is stacked against plaintiff’s attorneys.  Defendants seem to have all the resources, the technical know-how and the interest of the major eDiscovery vendors while the plaintiffs often have few resources, technical knowledge or eDiscovery experience.  How do plaintiff’s attorneys bridge that gap?  Here’s a webcast that will help put those plaintiff’s attorneys on a more equal footing with their defendant counterparts.

Wednesday, June 26th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Conquering the Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys. In this one-hour webcast that’s CLE-approved in selected states, we will discuss the biggest eDiscovery challenges facing plaintiff’s attorneys and provide best practices for addressing those challenges to give plaintiff’s attorneys the best chance to get the evidence they need for their case. Topics include:

  • Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys
  • Ethical Duties and Rules for Understanding Technology
  • Does the eDiscovery Market Care About Plaintiff’s Attorneys?
  • Understanding the Fundamentals of eDiscovery
  • Your Clients May Have More ESI Than You Think
  • How to Request the Right Form of Production from Opposing Counsel
  • Mechanisms and Approaches for Getting the Data to Make Your Case
  • What You Need to Know About Technology Assisted Review
  • Resources You Need to Bridge Your Understanding Gap

As always, I’ll be presenting the webcast, along with Tom O’Connor, whose aforementioned white paper regarding the biggest eDiscovery challenges facing plaintiff’s attorneys was published last month on the blog.  To register for it, 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).  If you’re a plaintiff’s attorney looking to better handle eDiscovery challenges or a defense attorney wondering what “secrets” we’re passing onto those plaintiff’s attorneys, this webcast is for you!

So, what do you think?  Are you a plaintiff’s attorney who feels that the eDiscovery deck is stacked against you?  If so, please join us!  If not, please join us anyway!  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.

If You’re Reading This, It Probably Doesn’t Apply to You: eDiscovery Best Practices

On the veritable eve of the annual Georgetown Law Center eDiscovery Training Academy (covered by us here), Craig Ball (who is in the midst of that very academy now) has asked the question Have We Lost the War on E-Discovery?  But, if you’re reading that (or this blog post), it probably doesn’t apply to you.

In Craig’s post from last Thursday, he notes that the idea that there is a war on eDiscovery “[s]ounds like a paranoid notion, but the evidence is everywhere.”  He observes that he is “flummoxed by how the tide has turned to anti-discovery topics”, such as proportionality, privacy, General Data Protection Regulation (GDPR) and cybersecurity.  He notes that “[t]hese are important topics” and that “[d]iscovery needs to be just, speedy and inexpensive”, but asks “why do we keep forgetting that there’s a comma in there?  Will we ever balance our self-interest in advancing our client’s wishes against our common interest in a justice system that serves everyone?”

Craig also notes that “Impractical, misplaced and mistimed topics like blockchain,” (oops, we did that in a blog series and webcast) “Dark Web and AI serve to eat up time that should be devoted to e-discovery topics about which lawyers still desperately need practical instruction.”  In asking you whether there is a war on eDiscovery, Craig also challenges you to “[l]ook at the agenda of any major e-discovery conference” and “[c]ount the hours devoted to practical e-discovery skills that support the finding and turning over of relevant evidence”, then “count the hours devoted to telling lawyers how to limit discovery, challenge discovery, assert proportionality, protect privacy, enforce data security, manage data breaches, delegate discovery to vendors, cut costs or cede their roles to robots.”

Craig, in referencing the “last round of e-discovery rules amendments”, also observes that requesting parties are not winning the war on eDiscovery and notes that “Corporations spent more money lobbying for the 2015 e-discovery rules changes than has ever been spent in support of procedural rules amendments since 1939.   Final score: Funders 1, Founders 0.”

Craig is not wrong about any of this.  He was one of the experts that discussed the challenges facing plaintiff’s attorneys in Tom O’Connor’s recent series on our blog.  There are a lot of challenges and we will touch on that tomorrow and later this month in our monthly webcast.

But, here’s the problem.  Most of the people who are in this predicament are probably not reading about this in Craig’s blog – or here.  They aren’t requesting those hours of instruction on practical eDiscovery skills.  They aren’t reading the blogs and other publications to learn more about what they should be doing (at least when we do cover those topics).

If they did, the webinars and blogs and conferences might just cover those topics more.  They cover what their viewers/readers/attendees are asking for.  And, it’s not usually the practical eDiscovery skills because many of the people who view the webinars, read the blogs and attend the conferences have learned about those already.  They are among the small percentage who have obtained that knowledge already and want to move onto newer topics that are more interesting to them.  It’s the rest of the people who haven’t.  And, unfortunately, they are the ones who are not reading Craig’s blog, or this one.

So, what do you think?  Do you want to see more practical eDiscovery skills covered on this blog?  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.

With No Showing of Prejudice, Court Denies Spoliation Sanctions Against Defendant: eDiscovery Case Law

In Mafille v. Kaiser-Francis Oil Co., No. 18-CV-586-TCK-FHM (N.D. Okla. May 21, 2019), Oklahoma Magistrate Judge Frank H. McCarthy, finding that the plaintiffs “have not demonstrated they have been prejudiced” by the loss of the plaintiff former employee’s work computer, denied the plaintiffs’ motion for sanctions “without prejudice to reassertion of the motion if through discovery it is determined that some specific evidence is beyond Plaintiffs’ reach” for the defendant’s “clear failure” to preserve the computer.

Case Background

In this employment discrimination action filed by a former employee of the defendant who was terminated on July 5, 2018 for alleged performance issues, the plaintiff submitted an EEOC charge of discrimination on August 1, 2018 and issued a Right to Sue letter on August 15, 2018.  The plaintiffs commenced the action in October 2018 and the action was removed to federal court in November 2018.  On October 29, 2018, defendant’s counsel sent an email to plaintiffs’ counsel instructing them about plaintiffs’ obligation to preserve data on all electronic media and lectured plaintiffs about their duty to preserve evidence in a subsequent email.

However, an IT supervisor for the defendant stated in his deposition, that (the former employee) Mrs. Mafille’s computer was given to a charitable organization with other retired computers on November 3, 2018 and as a result the data contained on the computer was not preserved and presumably destroyed.  While Mrs. Mafille stated that she was “unaware of the extent of information that might have been on her [work] computer”, the plaintiffs nonetheless asserted that Mrs. Mafille’s workplace computer was willfully and intentionally destroyed, that it may have provided a “treasure trove” of information concerning her work performance over the entire term of her employment, and that as a result the plaintiffs had been irretrievably prejudiced.

Judge’s Ruling

Judge McCarthy stated: “In defense of its failure to preserve the computer, Defendant makes what the court views as an ill-considered assertion that if Plaintiffs had made a request for the computer earlier than they did, the computer could have been pulled and saved…As evidenced by the emails from Defendant’s attorney lecturing Plaintiffs about their obligation to preserve electronically stored evidence, it is abundantly clear that counsel was aware of Defendant’s own responsibility in this regard. The duty to preserve the electronically stored evidence exists independent of a specific request that the evidence be preserved. It is exceedingly poor form, and beyond zealous advocacy, for Defendant to attempt to blame Plaintiffs for its own obvious failing. The court finds that Mrs. Mafille’s work computer should have been preserved and further that Defendant is solely and entirely at fault for failing to take reasonable steps to preserve the computer.”

However, Judge McCarthy also observed that “Defendant asserts that sanctions are not appropriate because Plaintiffs have not demonstrated they have been prejudiced by the loss of Mrs. Mafille’s work computer. According to Defendant, a policy was in place requiring that materials be uploaded to Defendant’s LAN Server daily. As a result, there should not have been relevant materials on the subject computer that are not also accessible on the LAN Server. Defendant also asserts that it has requested Plaintiffs to identify what items were on Mrs. Mafille’s computer so an attempt can be made to recover the items from the LAN Server, but Plaintiffs have not identified any such items.”

Stating “[b]efore an order of sanctions may be entered, there must be a showing of prejudice”, Judge McCarthy denied the plaintiffs’ Motion for Sanctions “without prejudice to reassertion of the motion if through discovery it is determined that some specific evidence is beyond Plaintiffs’ reach because of what the court views as Defendant’s clear failure to preserve Mrs. Mafille’s work computer.”

So, what do you think?  Did the defendant get lucky there?  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.

If You’re “Certifiable”, You Must Be “Committed”: eDiscovery Trends

Despite what the title might suggest, this is an eDiscovery related post, not a psychological one.  Certifications have become increasingly important in eDiscovery today and a couple of recent events illustrate how “committed” CloudNine is to eDiscovery professionals who are “certifiable”.

I can’t believe it has taken me this long to mention it, but I was recently interviewed by Jared Coseglia, founder and CEO of TRU Staffing Partners for Legaltech® News regarding our training and certification program for our CloudNine LAW product (The LAW PreDiscovery Certification is Back).  In that interview, Jared and I discussed the direction of LAW and how much CloudNine has invested in the product since we acquired it (along with Concordance and Early Data Analyzer, now rebranded as CloudNine Explore) in terms of doubling our development and customer success staff for the products.  As a result (shameless plug warning!), we have rolled out a number of new features and capabilities, including our new 64-bit ingestion “Turbo Import” module that has increased ingestion speed as much as 1200 percent in our tests.

But, another big part of LAW being back has been re-instituting the training and certification program for LAW.  While all these changes in functionality mean updates to the training and certification program, we have been working hard to make those updates to support a training and certification program that reflects those updates.  The end result is a certification program that reflects the most recent updates to the product and CloudNine will be looking to implement a two-year renewal to make sure that certified LAW professionals have certified training on the latest features.

If you’re an organization that uses LAW (or develops the product, like we do), that up-to-date certification will become more and more important in hiring eDiscovery professionals with experience in LAW.  Let’s face it, given the choice between two otherwise equivalent professionals – one who has an up-to-date certification in LAW and one who doesn’t – who wouldn’t pick the one who has the up-to-date certification every time?

Which leads me to the other event: yesterday’s announcement that CloudNine has renewed its partnership affiliation with the Association of Certified eDiscovery Specialists (ACEDS).  How far has ACEDS come in the past three plus years?  ACEDS today has 20 chapters across the globe, and over 10,000 professionals tuned into their weekly newsletter, which is great and it’s due to the leadership of ACEDS executive director Mary Mack and VP of Client Engagement Kaylee Walstad (and the team that support them).

Like CloudNine and our eDiscovery Daily Blog, ACEDS has been committed to education of eDiscovery professionals in a variety of ways, through webinars (some of which we have partnered with them on) and other educational programs, and especially through certifications.  It wasn’t that long ago that an industry survey showed that eDiscovery professionals were only slightly more than 50-50 on eDiscovery certifications, but the ACEDS certification today has clout like never before.  The ACEDS certification could make the difference between getting that important eDiscovery job and not getting it.  So, if you’re certifiable – and you’re committed – that could actually be a good thing (at least from an eDiscovery standpoint, if not a psychological one).

So, what do you think?  Do you have an ACEDS certification or some other eDiscovery related certification?  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.

Does Louisiana’s Tech Ethics Opinion Miss the Mark? Depends on Who You Ask: eDiscovery Trends

Last week, I read an article from Bob Ambrogi on Above the Law, that discussed his opinion (as well as that of Nicole Black, discussed in her Sui Generis blog) that the recently adopted Louisiana ethics opinion misses the mark with regard to guidance to lawyers regarding their ethical duty to understand technology.  When I saw that, I reached out to my good buddy Tom O’Connor (and the longest tenured Louisiana attorney I know, sorry Craig), for his take.  Did he agree with that assessment?  As Tom put it in his own Techno Gumbo blog (channeling his internal Lee Corso), “not so fast, my friend”.

The first shortcoming that Bob and Nicole point out has to do with language that seems to indicate that the duty to be competent in technology should kick in only if a lawyer “chooses” to use technology.  Two quotes from the opinion are as follows:

Spanning the bottom of page 1 and top of page 2: “The consensus is that if a lawyer is going to use technology, that lawyer has a duty to comply with Rules 1.1, 1.3, 1.4, 1.6 and 1.15 of the ABA Model Rules of Professional Conduct.”

First paragraph at the top of page 7: “Additionally, lawyers have ethical rules that require confidentiality of client information.  Thus, if a lawyer chooses to use technology in the lawyer’s practice, basic issues must be addressed.”

Bob identified a second shortcoming of the opinion via the Conclusion on page 9, that it “is directed solely at a lawyer’s own use of technology”, which “misses a critical component of the duty of technology competence – understanding the client’s use of technology”.

Here is that Conclusion: “A lawyer must consider the benefits and risks associated with using technology in representing a client.  When a lawyer uses technology in representing a client, the lawyer must use reasonable care to protect client information and to assure that client data is reasonably secure and accessible by the lawyer.”

Bob also referenced that “the ABA’s first opinion to address Model Rule 1.1, Comment 8 — Formal Opinion 477 issued in 2017 — makes the point repeatedly that the duty of technology competence encompasses the ability to understand how the client uses technology, what technology systems the client uses, and the client’s degree of technology sophistication.”

Tom noted that ABA Model Rule 1.1, Comment 8 was “horribly vague” when it was passed in August of 2012 and merely says  “ … a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  He also noted that Formal Opinion 477 dealt specifically with Securing Communication of Protected Client Information, the actual title of the Opinion and was “a specific technical discussion and not that of an overall duty of technical competence.”

Tom also noted that “everyone discussing this topic, quotes the The State Bar of California’s Formal Opinion No. 2015-193 with its ‘6 things ever lawyer needs to know about technology’ emphasis”, but that opinion is positioned as “advisory only” and “specifically refers ONLY to eDiscovery matters.”  Despite the fact that California is the only state to issue an eDiscovery competence opinion, they are one of only 14(?) states now that still hasn’t adopted the ABA Model Rule for technology competence.  Go figure.

With regard to whether the Louisiana opinion implies a choice of whether or not to use technology. Tom says “I personally think that’s splitting hairs in a way the Code doesn’t intend.  Perhaps a better word would have been ‘when’ not ‘if’, but still, do we seriously think anyone is NOT using technology? I mean they could choose not to use a phone either but I’m guessing their work would diminish. Rapidly.”  And, he notes that only two states have passed a subsequent CLE requirement for gaining that tech competence, so, by that standard, nearly every state (except for Florida and North Carolina) falls short.  That may be the real indicator that we still have a long way to go on attorney tech competence across the country.

I hit the highlights of the respective arguments, but I encourage you to read each of their articles/posts for more information.

So, what do you think?  Did Louisiana miss the mark with its ethics opinion on lawyers’ use of technology?  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.

Today’s Webcast Will Help You Learn How to Keep Production from Becoming Such a Big Production: eDiscovery Webcasts

Does it seem like eDiscovery production always turns into a big production? It doesn’t have to do so. There are a number of steps you can take to minimize the stress, cost and rework associated with producing electronically stored information to opposing counsel as well as to ensure that their production to you is as useful as possible.  Today’s webcast will help you learn the steps and concepts to keep your productions from turning into a big production.

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Keeping Production from Becoming a Big Production. In this one-hour webcast that’s CLE-approved in selected states, we will discuss some of the most common steps you can take during the discovery life cycle to keep your eDiscovery production on track. Topics include:

  • When to Start Thinking About the Production
  • Proactively Addressing Inadvertent Privilege Productions
  • Up Front Planning to Reduce Your Production Burden
  • Avoiding Getting Stuck with a Bad Production from Opposing Counsel
  • Understanding Your Data to Drive Discovery Decisions
  • Minimizing Potential ESI Spoliation Opportunities
  • Eliminating Processing Mistakes that Can Slow You Down
  • Common Searching Mistakes and How to Avoid Them
  • Avoiding the Redaction “Epic Fail”
  • Understanding Load Files and Common Issues with Them
  • Ensuring a Smooth and Accurate Production Set

As always, I’ll be presenting the webcast, along with Tom O’Connor, whose white paper regarding production challenges and how to address them was published last month on the blog.  To register for it, click here.  It’s not too late!  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).  If you want to learn about how to make your production become less of a major production, this webcast is for you!

So, what do you think?  Do you find your productions always turn into a big production?  If so, please join us!  If not, please join us anyway!  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.

Court Upholds Decision Not to Compel Plaintiff to Produce Unredacted Narrative of Events: eDiscovery Case Law

In Kratz v. Scott Hotel Group, LLC, No. 4:17-cv-00212-TWP-DML (S.D. Ind. Apr. 29, 2019), Indiana District Judge Tanya Walton Pratt, stating “[t]o invoke schoolyard vernacular: no do-overs”, denied the defendant’s objections to the Magistrate Judge’s decision not to compel the plaintiff to produce versions of an unredacted narrative of events associated with his hotel stays and interactions with hotel staff.

Case Background

In this class action lawsuit against the defendant alleging violation of the Indiana Consumer Protection Act, breach of contract and misrepresentation, the plaintiff revealed during a deposition that he had created a narrative of events in a Microsoft Word file to document his hotel stays and interactions with hotel staff.  Later, the plaintiff produced a redacted version of the narrative in PDF format and claimed work product privilege over the redactions, to which the defendant objected.

In October 2018, the parties convened for a discovery conference with the Magistrate Judge, who, under the impression that only one (redacted) version of the narrative existed, denied the defendant’s request to require the plaintiff to produce the unredacted version of the narrative.  The defendant filed an Objection to the ruling in November 2018, pursuant to Federal Rule of Civil Procedure 72(a).  However, the Magistrate Judge subsequently discovered that the plaintiff’s counsel misrepresented the facts at that discovery conference and that the plaintiff had sent the earliest, native (unredacted) version of the document to his attorney in September 2017.  The plaintiff had sent subsequent versions of the document, updated in preparation of litigation, to his attorney in April 2018 and June 2018.  Upon learning this information, the Magistrate Judge amended her ruling and ordered the plaintiff to produce the September 2017 version of the narrative in its native Word document format, but not the last two versions because they were determined to be made in anticipation of litigation.  The defendant maintained its objections to the Magistrate Judge’s ruling as to the second and third iterations of the narrative.

Judge’s Ruling

Judge Pratt noted that “Scott Hotel presents numerous arguments that were not made at the October 29, 2018 conference before the Magistrate Judge”, but also noted that the defendant’s objection briefing “treats the Court’s review of the Magistrate Judge’s decision as an opportunity for de novo presentation and review.”  With regard to those arguments, Judge Pratt concluded that the presentation of arguments not raised before a magistrate judge is “clearly inappropriate” and stated that she “will disregard newly submitted arguments regarding waiver of work product protection and attorney-client privilege. ‘To invoke schoolyard vernacular: no do-overs.’”

As for work product protection for the modifications performed to the document in anticipation of litigation, Judge Pratt stated that “[t]he mere fact that Kratzer recorded his thoughts in anticipation of litigation as modifications and additions to a pre-existing document instead of in a new document does not exclude those thoughts from work product protection.”  Given “Scott Hotel’s ability to depose Kratzer and access most of the content of the later versions of the narrative renders its [substantial need and undue hardship] arguments unpersuasive”, Judge Pratt denied the defendant’s Objection to the Magistrate Judge’s decision.

So, what do you think?  Do you think that modification of a document previously ruled as not privileged could be considered privileged if it was done in anticipation of litigation?  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.

Court Sanctions US Government for Spoliation in Copyright Infringement Case: eDiscovery Case Law

In 4DD Holdings, LLC v. U.S., No. 15-945C (Fed. Cl. May 10, 2019), the US Court of Federal Claims, in an opinion issued by Judge Bruggink, “grant[ed] plaintiffs’ motion for sanctions because the government destroyed relevant evidence that it had a duty to preserve.”  The Court directed the plaintiffs to “file a motion, appropriately supported, seeking a recovery of its costs and fees related to the motion for sanctions and with respect to discovery prompted by the destruction of evidence” and indicated it would “defer until summary judgment or trial the application of the evidentiary implications of this ruling.”  The court also denied the defendant’s motion to dismiss “[b]ecause plaintiffs established that the government authorized or consented to SMS’s allegedly infringing activity when working in SMS labs.”

Case Background

In this copyright infringement case involving installation of the plaintiff’s software in excess of the purchased license, the DoD’s Defense Health Agency (“DHA”) “repeatedly” required its contractor Systems Made Simple, Inc. (“SMS”) to perform work using the plaintiff’s copyrighted software in the contractor’s own labs.  The agency purchased a software license from the plaintiff’s reseller for 64 cores and the plaintiff’s End User License Agreement (“EULA”) permitted “the agency to make ‘one (1) copy of the object code to [TETRA] solely for back-up purposes,’ which it could only use ‘if the original copy is damaged or destroyed.’”  The agency also required the plaintiff to disable its software tracking feature to inform it of a software installation.

However, the Chief Engineer on the project (David Calvin) acknowledged in both his July 2018 declaration and his October 2018 deposition that work by SMS would have involved cloning TETRA virtual machines in their labs.  And, in August 2014, the plaintiff contacted the Contracting Officer’s Representative (Sheila Swenson) alleging that more than 64 cores were in use.  In September, Calvin directed the removal of instances of the plaintiff’s software in certain environments.  By December 2014, the agency “identified an over deployment of 168 core licenses to development servers.”  Nonetheless, Swenson reported 64 cores in use because that was the number of cores the agency had originally paid for.  In March 2015, the agency modified the license to increase the licensed quantity by 168 cores.

The plaintiff filed suit in August 2015. On September 9, 2015, the Department of Justice sent a letter to alert DoD of its responsibility to provide a litigation report and to furnish all evidence in DoD’s possession, stating “all records storage centers and other facilities where records are kept be immediately notified to forthwith identify, physically segregate and withhold from destruction all documents and papers touching upon the claims set forth in the complaint.”  Nonetheless, the agency’s Development Test Center (“DTC”) proceeded with a shredding of hard drives later that same month.  In addition, most of the laptops in use related to the project were returned and reimaged months after the litigation hold notice was issued, destroying any data related to the case they might have contained.  As discovery wound down, plaintiffs filed a motion for sanctions in November 2018.

Court Ruling

The Court found that “SMS was acting (1) “for the Government” and (2) “with the authorization or consent of the Government” when it performed any infringing activity in SMS labs.”  As a result, the Court denied the defendant’s motion to dismiss.

With regard to the plaintiffs’ motion for sanctions, the Court said: “The parties agree on the key events: The agency deleted instances of TETRA during the true-up period without informing 4DD. The agency destroyed the DTC servers’ hard drives. The agency erased all the information on many laptops used on the DMIX project.”  With regard to the DTC servers, the Court ruled that “Mr. Calvin’s orders directing contractors to delete instances of TETRA in listed environments because of ‘a license issue’ is sufficient to demonstrate that he intentionally deprived 4DD of the use of that information in litigation.”  But, the Court also noted that the “DTC decommissioning and laptop reimaging are not as clear cut”, ruling that “communication failure is undoubtedly negligent but falls short of the intentional behavior expected under Rule 37(e)(2)”.

Nonetheless, the Court “grant[ed] plaintiffs’ motion for sanctions because the government destroyed relevant evidence that it had a duty to preserve” and directed the plaintiffs to “file a motion, appropriately supported, seeking a recovery of its costs and fees related to the motion for sanctions and with respect to discovery prompted by the destruction of evidence” and indicated it would “defer until summary judgment or trial the application of the evidentiary implications of this ruling.”

So, what do you think?  Do you think the court ruled correctly on the intent to deprive standard for Rule 37(e)(2) in this case?  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.

FTC Calling for National Data Privacy Law: Data Privacy Trends

Sure, we’ve talked about California’s Consumer Privacy Act (CCPA).  And, we’ve also noted that there are at least 15 state data privacy laws that are working their way through the legislative process.  But, is there anybody pushing for a national data privacy law?  At least one Federal agency is doing so.

According to Naked Security (FTC renews call for single federal privacy law, written by Lisa Vaas – with hat tip to Sharon Nelson and the excellent Ride the Lightning blog), the U.S. Federal Trade Commission (FTC) is again “beating the drum” for the long-discussed and much-debated national data privacy law, the lack of which keeps the country from parity with the EU and its General Data Protection Regulation (GDPR), or with the various states (including California) that are working on their own laws.

Earlier this month, FTC commissioners testified before the House Energy and Commerce subcommittee and as reported by The New York Times, they addressed how a national privacy law could regulate how big tech companies like Facebook and Google collect and handle user data.  Of course, besides consumer protection, the FTC is looking for more power. Commissioners asked Congress to strengthen the agency’s ability to police violations, asking for more resources and greater authority to impose penalties.

In February, both the House and Senate held hearings on privacy legislation, transparency about how data is collected and shared, and the stiffening of penalties for data-handling violations.  A number of lawmakers agree that we need a new, single federal privacy law and they are now considering several laws and bills, including the Data Care Act and the American Data Dissemination Act.  One senator even proposed a bill that would throw execs into jail for up to 20 years if they play “loosey-goosey” with consumer privacy.  Yeah, that’ll happen.

With the FTC in settlement talks with Facebook following its 13-month investigation into privacy violations stemming from the Cambridge Analytica privacy debacle, there are certainly plenty of reasons to pass legislation to standardize the handling of data privacy breaches.  All we have to do is to get Congress to agree on it.  Easy, right?  ;o)

So, what do you think?  Do we need a national data privacy law similar to Europe’s GDPR?  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 Establishes Search Protocol to Address Plaintiff’s Motion to Compel: eDiscovery Case Law

In Lawson v. Spirit Aerosystems, Inc., No. 18-1100-EFM-ADM (D. Kan. Apr. 26, 2019), Kansas Magistrate Judge Angel D. Mitchell granted in part and denied in part the plaintiff’s motion to compel, ordering the defendant to produce documents related to two requests and, with regard to a third request, ordering the defendant to “produce these documents to the extent that such documents are captured by the ESI search protocol.”

Case Background

This case regarded the defendant’s alleged breach of a retirement agreement with the plaintiff due to plans by an investment firm to install the plaintiff as CEO of an aircraft component manufacturer (“Arconic”) where the defendant withheld the plaintiff’s retirement benefits because the defendant claimed that he violated the non-compete provision in his retirement agreement.

In discovery, the plaintiff filed a motion to compel, seeking “the court’s intervention regarding discovery related to the “Business” of Spirit and Arconic. Specifically, Mr. Lawson asks the court to compel Spirit to produce (1) its contracts with Boeing and Airbus; (2) its antitrust filings relating to its planned acquisition of Asco Industries; (3) documents related to the aspects of Spirit’s business that Spirit alleges overlap with Arconic’s business; and (4) documents related to Spirit’s relationship with Arconic.”  At a subsequent hearing, the plaintiff clarified that he was not seeking to compel the full scope of documents sought in the original Requests for Production, but rather only the smaller subset of documents that were the subject of his motion to compel.

Judge’s Ruling

With regard to the Boeing and Airbus Contracts, Judge Mitchell granted the plaintiff’s motion “with respect to the portions of these contracts (or amendments, addenda, exhibits, schedules, data compilations, or lists) that relate to Spirit’s deliverables to Boeing and Airbus.”  And, with regard to Antitrust Filings, Judge Mitchell granted the plaintiff’s motion “with respect to the portion of these filings relating to Spirit’s business and market/marketing positioning, including the index(es) for these filings, the “4(c) documents,” and related white papers.”  He ordered the defendant to produce documents related to both categories “on or before May 7, 2019.”

With regard to Product Overlaps and Spirit’s Relationship with Arconic, Judge Mitchell granted these aspects of the motion in part and denied them in part, ordering the defendant to “produce these documents to the extent that such documents are captured by the ESI search protocol.”  That protocol was as follows:

“After consultation with the parties, the court orders the parties to comply with the following ESI search protocol:

  • By May 3, 2019, Mr. Lawson shall identify up to seven categories of documents for which it seeks ESI.
  • By May 20, 2019, for each category of documents, Spirit shall serve a list of the top three custodians most likely to have relevant ESI, from the most likely to the least likely, along with a brief explanation as to why Spirit believes each custodian will have relevant information.
  • By May 23, 2019, Mr. Lawson shall serve a list of five custodians and proposed search terms for each custodian.

 *3 • Spirit shall search the identified custodians’ ESI using these proposed search terms. Spirit shall use sampling techniques to assess whether the search has produced an unreasonably large number of non-responsive or irrelevant results and, if so, Spirit shall suggest modified search terms (e.g., different keywords, negative search restrictions, etc.) by May 30, 2019.

  • The parties shall meet and confer about search terms and try to achieve an estimated responsive hit rate of at least 85%.
  • Spirit shall produce responsive documents from the first five custodians on or before June 21, 2019.
  • Meanwhile, the parties shall begin this same process for the next five custodians. By May 30, 2019, Mr. Lawson will produce to Spirit a list of the next five custodians and proposed search terms for each custodian. If Spirit finds that the estimated responsive hit rate is not at or above 85%, Mr. Lawson shall suggest modified search terms by June 6, 2019. The court will set a deadline for Spirit to produce documents from the second set of five custodians at a later time.

If Mr. Lawson wishes to seek ESI from additional custodians beyond the ten described in this protocol, the parties are directed to contact the court for further guidance.”

Judge Mitchell also denied the plaintiff’s request to order the defendant to pay his attorneys’ fees and costs associated with the motion to compel.

So, what do you think?  Do you think the ordered responsive hit rate of 85% is reasonable?  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.