eDiscoveryDaily

This Blog Post Will Not Be Automatically Deleted, But Your Instant Message Might Be: eDiscovery Trends

The sources of electronically stored information (ESI) are more varied than ever.  Now, they routinely include text messages and messages from instant messaging apps.  But, depending on the instant message app – or the archive option for any messaging app, that ESI might not be available at litigation time.

In LegalTech® News (This Article Will Self-Destruct: Behind Ephemeral Messaging’s In-House Rise, written by Rhys Dipshan), the author notes that the rise of ephemeral messaging, self-erasing communications “have gone from spy movie lore to everyday consumer technology.”  That technology may be welcomed by privacy advocates, but not so much by those responsible for compliance, investigations and litigation efforts.  And, while ephemeral messaging was once only the focus of a handful of messaging apps, they’re now being offered by widely used services like Gmail and Facebook.

Remember the Waymo v. Uber case?  In that case, Waymo sought sanctions for Uber’s use of the ephemeral messaging app Wickr for communications, but California District Judge William Alsup ruled that Waymo could inform the jury of the situation and have them reach their own conclusions – in part, because Waymo also disclosed it used ephemeral messaging apps in-house as well.

Ephemeral messaging apps are becoming more prevalent – and they’re even becoming more accepted from a regulatory standpoint.  In April 2019, for example, the Department of Justice (DOJ) rescinded a policy requiring companies to restrict their employees’ use of ephemeral messaging apps if they wanted credit for cooperating with DOJ enforcement actions under the Foreign Corrupt Practices Act. The new DOJ policy now only requires companies to implement “appropriate guidance and controls on the use of personal communications and ephemeral messaging platforms.”

Gareth Evans, eDiscovery expert and partner at Redgrave, noted that one of the most fundamental uses for ephemeral messaging is to help organizations more easily delete data they shouldn’t be keeping in the first place.

“Simply, if there is no business purpose or business need for retaining the messaging, if there is no legal requirement to keep it, that in itself is a good reason not to be keeping it. And by keeping communications [you don’t need], you run certain risks.”

That’s great when there isn’t a duty to preserve (i.e., when you anticipate litigation).  But, what about when that duty exists?

For years, we’ve discussed the importance of suspending auto delete programs when anticipating litigation and we’ve discussed cases where failure to do so can lead to sanctions (like this one and this one).  Historically, those auto delete programs have been associated with email, but they are becoming more associated with text and other messaging apps, as well.  And, it’s important to note that while some messaging apps are ephemeral by default, most (if not all) messaging apps can be set to automatically delete messages after a period of time – including text messaging apps like the text message app for iPhones, which is set to retain messages “forever” by default, but can be changed to a 1 year or even 30 day retention period.  That’s why it’s become more important than ever to address automatic deletion for text and other messaging apps when litigation is anticipated to avoid potential spoliation.

So, what do you think?  Does your organization use ephemeral messaging apps?  If so, how does it handle the use of those apps during litigation?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © CBS Television Distribution.

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 Rejects Plaintiff’s Timeliness and Form Served Arguments; Grants Defendant’s Motion to Compel: eDiscovery Case Law

In Frey v. Minter, No. 4:18-CV-191 (CDL) (M.D. Ga. June 12, 2019), Georgia Chief U.S. District Court Judge Clay D. Land rejected the plaintiff’s arguments that the defendant’s discovery requests were untimely and were not properly served and granted the defendant’s motion to compel against the plaintiff.  With regard to the defendant’s motion to compel against a non-party law firm, Judge Clay ordered that firm to provide the defendant with an estimated cost for responding to the requests, and upon payment of those costs, to produce the documents within twenty-one days.

Case Background

In this defamation case filed by one attorney against another attorney and his client regarding their claims of alleged fraudulent and unethical conduct by the plaintiff as a creditor against a former client, the parties filed a joint case management report, proposing a discovery deadline of January 26, 2019 and agreeing that “all discovery must be commenced in time to be completed before this date.”  The parties also agreed that each party would “timely serve discovery requests so that the rules allow for a response prior to the discovery deadline.”  After the plaintiff appealed several of the Court’s rulings in January 2019 and the appeal was dismissed for lack of jurisdiction, the Court found good cause for an amended scheduling order and instructed the parties to submit a joint proposed scheduling order that included an updated discovery deadline.

The parties agreed to a deadline for motions to compel previously issued discovery requests and the Court initially entered an amended scheduling order that provided for no motions to compel, noting that any discovery motions should have been filed during discovery. However, the defendant sought reconsideration, asserting that the parties had agreed that “no new discovery requests would be issued, but that they could seek Court action on requests that had already been issued.”  The plaintiff opposed the motion for reconsideration, anticipating that the defendant might seek to compel responses to discovery requests that were made on the eve of the discovery deadline.

The Court granted the motion for reconsideration and adopted the deadlines that the parties originally proposed, knowing that any motion to compel would likely relate to discovery requests that were served during discovery, even those that were technically untimely under the Case Management and Scheduling Order.

Judge’s Ruling

Judge Clay stated: “Given that the Court had found good cause for an amendment of the scheduling order and had invited the parties to extend all of the deadlines, including the discovery deadline, the Court’s ruling that permitted post-discovery motions to compel likewise included the right to compel responses to any discovery that had been propounded prior to the expiration of the discovery deadline, even if responses to that discovery could not have been made prior to the previous discovery deadline. To hold otherwise would make the Court’s order extending the motion to compel deadline meaningless because there would be no discovery requests that could be compelled. Accordingly, the Court finds that Minter’s motion to compel shall not be denied based upon his failure to serve his discovery requests within the deadline established by the earlier case management order.”

Judge Clay also rejected the plaintiff’s other objection to the motion – that he was not properly served with the requests because he did not consent in writing to service of discovery requests via email.  Noting that the plaintiff had responded to the defendant’s former attorney’s question regarding whether email service to his email address is sufficient for the federal court filings by stating “Yes, this email is good”, Judge Clay stated: “Minter was justified in believing that Frey had consented to service of discovery requests by email. Even if Frey had not so consented, any deficiency in Minter’s service was harmless because it is clear that Frey received the document requests. The Court declines to deny the motion to compel on this ground.”  As a result, the defendant’s motion to compel was granted and the plaintiff was ordered to respond within twenty-one days.

Judge Clay also observed that “Minter also filed a motion to compel against non-party law firm Hunton, contending that the firm failed to respond adequately to his subpoena.”  Noting that “[t]he Court is sensitive about imposing unnecessary costs upon a non-party”, Judge Clay stated that “[t]hat concern can be addressed, however, by requiring Minter to pay for Hunton’s expenses associated with responding to the request.”  As a result, Judge Clay ordered that firm to provide the defendant with an estimated cost for responding to the requests, and upon payment of those costs, to produce the documents within twenty-one days.

So, what do you think?  Should the motion have been denied if they were untimely in the Case Management and Scheduling Order?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

Got Data Across Borders? The Sedona Conference Has a Commentary for You: eDiscovery Best Practices

Lately, it seems like we have a new publication from The Sedona Conference® (TSC) every couple of months or so.  This latest publication provides guidance to those that are transferring data across borders.

Last week, TSC and its Working Group 6 on International Electronic Information Management, Discovery, and Disclosure (WG6) announced that The Sedona Conference Commentary and Principles on Jurisdictional Conflicts over Transfers of Personal Data Across Borders (“Commentary”) has been published for public comment.

The goal of this Commentary is to provide: (1) a practical guide to corporations and others who must make day-to-day operational decisions regarding the transfer of data across borders; and (2) to provide a framework for the analysis of questions regarding the laws applicable to cross-border transfers of personal data.

This 48-page (PDF) Commentary lists six choice-of-law principles, then provides an Introduction that discusses the underlying tension, comity (not comedy) and legal and practical complexity associated with the transfer of data.  It ends with a 19 page Appendix on Data Privacy Complexity and Background.  In between, the Commentary goes much more into depth on the six choice of law principles, which are as follows:

Principle 1: A nation has nonexclusive jurisdiction over, and may apply its privacy and data protection laws to, natural persons and organizations in or doing business in its territory, regardless of whether the processing of the relevant personal data takes place within its territory.

Principle 2: A nation usually has nonexclusive jurisdiction over, and may apply its privacy and data protection laws to, the processing of personal data inextricably linked to its territory.

Principle 3: In commercial transactions in which the contracting parties have comparable bargaining power, the informed choice of the parties to a contract should determine the jurisdiction or applicable law with respect to the processing of personal data in connection with the respective commercial transaction, and such choice should be respected so long as it bears a reasonable nexus to the parties and the transaction.

Principle 4: Outside of commercial transactions, where the natural person freely makes a choice, that person’s choice of jurisdiction or law should not deprive him or her of protections that would otherwise be applicable to his or her data.

Principle 5: Data in transit (“Data in Transit”) from one sovereign nation to another should be subject to the jurisdiction and the laws of the sovereign nation from which the data originated, such that, absent extraordinary circumstances, the data should be treated as if it were still located in its place of origin.

Principle 6: Where personal data located within, or otherwise subject to, the jurisdiction or the laws of a sovereign nation is material to a litigation, investigation, or other legal proceeding within another sovereign nation, such data shall be provided when it is subject to appropriate safeguards that regulate the use, dissemination, and disposition of the data.

You can download a copy of the Commentary here (login required, which is free).  The Commentary is open for public comment through August 10, 2019. Questions and comments on the Commentary are welcome through August 10, and may be sent to comments@sedonaconference.org.

As always, the drafting team will carefully consider all comments received, and determine what edits are appropriate for the final version.  Also, a webinar on the Commentary will be scheduled in the coming weeks, and will be announced by email and on The Sedona Conference website to give you the opportunity to ask questions and gain additional insight on this important topic.

So, what do you think?  How does your organization address transfer of personal data across borders?  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.

Discovery “Cautionary Tale” Leads to Recommendations of Default Judgment Against Defendants: eDiscovery Case Law

In Abbott Laboratories, et al. v. Adelphia Supply USA, et al., No. 15 CV 5826 (CBA) (LB) (E.D.N.Y. May 2, 2019), New York Magistrate Judge Lois Bloom, noting that the plaintiff’s motion for case ending sanctions against H&H Wholesale Services, Inc., its principal, Howard Goldman, and its marketing manager and Mr. Goldman’s wife, Lori Goldman (“H&H Defendants”) for wide-scale discovery misconduct “presents a cautionary tale about how not to conduct discovery in federal court” recommended that the plaintiffs’ motion be granted, and that the Court should enter a default judgment against the H&H Defendants.

This case (covered here by Law360, subscription required; report and recommendation linked here) involves trademark and trade dress infringement, unfair competition, trademark dilution and other claims associated with the illegal sale of Abbott’s FreeStyle blood glucose test strips in the US.  Judge Bloom began the report and recommendations document with this statement:

“This motion presents a cautionary tale about how not to conduct discovery in federal court.”

Among the discovery issues according to Judge Bloom (and plaintiff allegations):

  • The documents the H&H defendants originally produced were printed “in hard copy, scanning them all together, and producing them as a single, 1941-page PDF file”;
  • H&H used search terms it knew wouldn’t turn up results (“such as ‘International’ and ‘FreeStyle,’ whereas H&H’s internal systems used item numbers and other abbreviations such as ‘INT’ and ‘INTE’ for International and ‘FRL’ and ‘FSL’ for FreeStyle”) and specifically removed other damning documents – particularly those involving Howard Goldman and Lori Goldman – and provided numerous false excuses for these omissions;
  • The testimony from H&H’s general manager regarding the discovery woes was “clearly inconsistent if not perjured from his deposition” opposing the sanctions motion, Howard Goldman’s testimony was “evasive and self-serving at best” and H&H’s corporate representative’s testimony was “clearly perjured”;
  • “H&H would have gotten away” with its fraud if not for Abbott being allowed to seize H&H’s computers as part of a related counterfeiting case, which allowed previously withheld documents to come to light.

“H&H only complied with the court’s orders and their discovery obligations when their backs were against the wall,” Judge Bloom wrote. “Their email server had been seized. There was no longer an escape from responsibility for their bad faith conduct … But for being caught in a web of irrefutable evidence, H&H would have profited from their misconduct.”

She added that the lies were part of a “calculated pattern of pervasive misconduct that started early on and continued even after defendants were caught red handed,” meaning the case must be ended with a victory handed to Abbott.

H&H had previously been sanctioned for its discovery misconduct, with Judge Bloom in 2018 blocking the supplier from raising attorney-client or work-product privilege defenses for a certain set of discovery production.

Even other companies that Abbott had also sued had gone after H&H and Kerr Russell for letting Goldman listen to remote depositions of other parties, in violation of a protective order.

In recommending that the plaintiffs’ motion for sanctions be granted and a default judgment being issued against the H&H defendants, Judge Bloom stated:

“The Court finds that the H&H defendants have committed a fraud upon the court, and that the harshest sanction is warranted. Therefore, plaintiffs’ motion for sanctions should be granted and a default judgment should be entered against H&H Wholesale Services, Inc., Howard Goldman, and Lori Goldman.”

So, what do you think?  Do you agree with the harsh sanction recommendations?  Please let us know if 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.

Determining Appropriate Sample Size to Test Your Search: eDiscovery Throwback Thursdays

If you missed it last week, we started a new series – Throwback Thursdays – here on the blog, where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on April 1, 2011 – no fooling!  It was part of a three-post series that we will revisit over the next three weeks – we have continued to touch on this topic over the years, including our webcast just last month.  One of our best!

One part of searching best practices is to test your search results (both the result set and the files not retrieved) to determine whether the search you performed is effective at maximizing both precision and recall to the extent possible, so that you retrieve as many responsive files as possible without having to review too many non-responsive files.  One question I often get is: how many files do you need to review to test the search?

If you remember from statistics class in high school or college, statistical sampling is choosing a percentage of the results population at random for inspection to gather information about the population as a whole.  This saves considerable time, effort and cost over reviewing every item in the results population and enables you to obtain a “confidence level” that the characteristics of the population reflect your sample.  Statistical sampling is a method used for everything from exit polls to predict elections to marketing surveys to poll customers on brand popularity and is a generally accepted method of drawing conclusions for an overall results population.  You can sample a small portion of a large set to obtain a 95% or 99% confidence level in your findings (with a margin of error, of course).

So, does that mean you have to find your old statistics book and dust off your calculator or (gasp!) slide rule?  Thankfully, no.

There are several sites that provide sample size calculators to help you determine an appropriate sample size, including this one.  Many eDiscovery platforms do so as well.  You’ll simply need to identify a desired confidence level (typically 95% to 99%), an acceptable margin of error (typically 5% or less) and the population size.

So, if you perform a search that retrieves 100,000 files and you want a sample size that provides a 99% confidence level with a margin of error of 5%, you’ll need to review 660 of the retrieved files to achieve that level of confidence in your sample (only 383 files if a 95% confidence level will do).  Here’s an illustration of that using the site referenced above.

If 1,000,000 files were not retrieved, you would only need to review 664 of the not retrieved files to achieve that same level of confidence (99%, with a 5% margin of error) in your sample – only four more files to review than the previous sample, even though the collection is 900,000 files larger!  Don’t believe me?  See for yourself here.

As you can see, the sample size doesn’t need to increase much when the population gets really large and you can review a relatively small subset to understand your collection and defend your search methodology to the court.

Next week, we will talk about how to randomly select the files to review for your sample.

So, what do you think?  Do you use sampling to test your search results?   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.

#metoo and the Increasing Investigation Emphasis on eDiscovery: eDiscovery Trends

In our April webcast (Discovery Isn’t Just for Litigation Anymore), conducted by Tom O’Connor and me, we discussed a number of factors that are increasing the need for eDiscovery software and services, including compliance considerations with the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA).  The need for eDiscovery in internal investigations is on the rise as well and one of the most significant factors is workplace harassment and #metoo, which we also discussed in that webcast.  Here’s another indication of the growth of that factor.

In the Legaltech News article As #MeToo Yields Harassment Investigations, Companies Turning to E-Discovery to Help (written by Victoria Hudgins), the author discusses how “e-discovery companies say they’ve seen a noticeable increase in the past two to three years from corporate legal departments leveraging their platform to investigate workplace harassment.”

“We are seeing it across the board, not just specifically to one category but the concept of trying to proactively identify behavior before it becomes a bigger issue and addressing it with additional training or self-reporting,” said Sheila Mackay, managing director of eDiscovery services at eDiscovery provider firm H5.

In our webcast, we referenced the 2019 Litigation Forecast from Crowell & Moring where #metoo was identified as one of the top 2019 litigation trends.  As that report noted: “The ensuing litigation is just beginning to wind its way through the courts, and its full impact is yet to be felt.”

“There have been a lot of complaints raised and individuals terminated, but few cases have been fully litigated,” said Ellen Moran Dwyer, a partner in Crowell & Moring’s Labor & Employment Group and chair of the firm’s Executive Committee. “So we haven’t seen a real shift in the legal and liability standards that apply in harassment cases—but that may be coming. Over time, the courts will have to grapple with these issues.”

Investigations don’t always lead to litigation, but it’s notable that, with regard to the litigation associated with #metoo claims, we’re just getting started.  And, organizations don’t just have to worry about individuals filing harassment claims, states are passing a ton of legislation to establish requirements with which organizations need to comply – over 260 laws directly addressing topics supported by the anti-sexual harassment initiatives within a 30-month period.  And, violations could and probably will lead to states filing claims against employers on behalf of harassment victims.  These are new litigation possibilities that organizations have to be prepared for as well.  Of course, the best litigation is the one you never have to conduct, so the importance of using eDiscovery software and services to identify potential harassment issues within the organization and address them proactively has become more important than ever.

So, what do you think?  How has your organization prepared to identify harassment issues?  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.

The Price is Right. Or is it? You Be the Judge: eDiscovery Trends

Talking about eDiscovery pricing in this industry is like talking about Fight Club, the first rule and second rule seems to be that you don’t talk about it.  Only Rob Robinson could get 81 people to talk about what isn’t talked about in this industry.

But, before I talk about it, I must first issue a “mea culpa”.  Every post for this blog is posted by me (even if not written by me) and I always schedule the posts to hit right after midnight on the day they will be posted.  On Sunday, I wrote the post for Monday and I selected the date and time for the post to issue.  But I forgot to hit the schedule button!!  Doh!!  So, the post didn’t hit our blog site until I noticed it about mid-morning and the daily newsletter wasn’t issued because there wasn’t a new post at “press time”.  Honestly, I’m surprised it hasn’t happened before.

So, if you missed yesterday’s post about my guest post for our good friends and Kansas City partners at Complete Legal regarding Leveraging Your Services Provider to Meet Today’s eDiscovery Challenges, click here to see it referenced on our blog.  Or better yet, click here to go straight to that guest post.  My bad.

Regardless, this post is about the latest survey from Rob Robinson and his terrific Complex Discovery blog.  The eDiscovery Pricing Survey is a non-scientific and non-comprehensive survey designed to provide general insight into eDiscovery pricing as shared by individuals working in the eDiscovery ecosystem.  It consists of 15 multiple choice questions focused on information and metrics related to eDiscovery pricing for collection, processing, and review tasks and it is open to legal, business, security, and information technology professionals operating in the eDiscovery ecosystem.  Individuals are invited to participate semi-annually primarily by direct email invitation from Complex Discovery and leading industry educational partners including the Association of Certified E-Discovery Specialists (ACEDS).

As I mentioned, there were 81 respondents for this Summer survey84% of which were providers (Software and/or Services Provider – 38.3%, Law Firm – 32.1% and Consultancy – 13.6%).  That’s 68 providers talking about eDiscovery pricing!  :O

I won’t steal Rob’s thunder in this blog, check out the survey results here.  This is the second eDiscovery pricing survey published by Rob – check out the first survey here.

So, what do you think?  How do those results compare with what you pay for eDiscovery services?  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.

My Guest Post for Complete Legal: eDiscovery Best Practices

You might think that since I write a daily blog, I have no time to do any other writing on the side.  And, a lot of times, that’s true.  However, I wrote a guest blog post recently for our good friends and Kansas City partners at Complete Legal and so I’ve decided to point to that blog post for today to give our readers a chance to read that post.

The blog post is titled Leveraging Your Services Provider to Meet Today’s eDiscovery Challenges: eDiscovery Best Practices and it’s on Complete Legal’s site here.  We’ve been partners with Complete Legal for several years and have worked with co-founders Jeff Dreiling and Eric Kelting for several years before that.  In the post I noted that in this era of automation in eDiscovery, you might think that the need for eDiscovery services is dwindling, but nothing could be further from the truth – the need to partner with an experienced eDiscovery services provider to ensure a successful outcome to your case is more important than ever.

I covered several topics in the post, including some interesting statistics that illustrate that the demand for eDiscovery services is as strong as ever, why you need an eDiscovery provider, making sure you select a provider with the right experience, getting your eDiscovery “geek” involved early and often, working with your eDiscovery service provider as a partner (not as a vendor) and how familiarity breeds “content” – which is to say that developing a comfort level with the right vendor can be a beautiful partnership that lasts for years.  That’s something we can all appreciate!

Again, the post is here, so please check it out!  Consider it today’s post, just in a different place.  See what I did there?  Sneaky, huh?  :o)

So, what do you think?  How do you work with your eDiscovery services provider?  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 Orders Plaintiff to Share in Discovery Costs of Non-Party: eDiscovery Case Law

In Lotus Indus., LLC v. Archer, No. 2:17-cv-13482 (E.D. Mich. May 24, 2019), Michigan Magistrate Judge Anthony P. Patti granted in part and denied in part without prejudice non-party City of Detroit Downtown Development Authority’s (DDA) motion for protective order in connection with the Court’s order granting in part and denying in part the plaintiff’s motion to compel documents requested by subpoena, ordering the plaintiff to pay some of DDA’s discovery costs, but not as much as DDA requested.

Case Background

In this civil RICO and First Amendment retaliation case associated with redevelopment of property in Detroit, the Plaintiff filed a motion to compel production of documents requested in his September 2018 subpoena to nonparty DDA in January 2019.  A hearing was held on the plaintiff’s motion on March 26, 2019, after which the Court entered an order granting in part and denying in part Plaintiff’s motion, ordering DDA to produce, by April 26, 2019, documents responsive to Request Nos. 4-6 of Plaintiff’s subpoena for the November 19, 2016 to present time period, and to produce a privilege log for any documents withheld on the basis of privilege.

On April 19, 2019, DDA filed the instant motion for protective order, seeking an extension of time to produce responsive documents and requesting that the plaintiff pay DDA its share of the expenses of production before being obligated to begin to comply with the Court’s order, contending that the volume of potentially responsive documents was substantially larger than anticipated (48.5 GB of data) and would impose a significant expense on DDA to produce and require far more time to complete than allowed by the Court’s order.  DDA initially anticipated the total expense of production at $127,653.00, which included $21,875.00 in costs to upload the data and approximately $105,778.00 in attorney’s fees in connection with a privilege review. DDA requested Plaintiff pay the $21,875 in costs and 25% of the anticipated attorney’s fees ($26,444.50); in response, the plaintiff opposed that motion and questioned why the costs were so high.

At the May 8, 2019 hearing on the motion, the parties agreed on new search terms to further refine the number of responsive documents and the Court scheduled a status conference for May 23, 2019 to discuss the results of that search. On May 22, 2019, DDA submitted a supplemental brief explaining that the revised search yielded 8.5 GB of data that must be reviewed for privilege, at a cost of $2,125.00 to upload the data to counsel’s eDiscovery platform and anticipated costs of $44,705.00 in attorneys’ fees to conduct a privilege review, so it sought an order for the plaintiff to pay DDA $2,125.00 in costs and $11,176.25 in attorneys’ fees (still 25% of the total attorneys’ fees anticipated).

Judge’s Ruling

Judge Patti found that “DDA has sufficiently established that it will be forced to incur $2,125.00 in fixed costs to upload the 8.5 GB of data to its third-party e-discovery platform in order to review it for production, and that it anticipates incurring $44,705 in attorneys’ fees to conduct a privilege review, prepare a privilege log and prepare the non-privileged documents for production.”

He also noted that “DDA has demonstrated that it has no interest in the outcome of this litigation, as it is not a party and Plaintiff’s prior case against it was dismissed as a sanction for Plaintiff’s ‘repeated misrepresentations’ and ‘failures to comply with discovery orders — despite warnings and the imposition of less severe sanctions…While DDA may more readily bear the expense of production than Plaintiff, that factor alone does not dictate that Plaintiff is relieved of the obligation to pay for some of the expense of production, particularly where this litigation has no particularized public importance and considering the ‘unusual circumstances’ in this case, including that Plaintiff’s prior lawsuit against the DDA was dismissed as a sanction, and he and his clients have been at the receiving end of multiple sanction awards in related and unrelated litigation, significant portions of which this particular plaintiff and his counsel have apparently failed to pay…In addition, the subpoena was directed in part at the general counsel for DDA, and Plaintiff should have anticipated that production of documents in response would require a robust privilege review prior to production, especially given the litigation history between Plaintiff and the DDA.”

As a result, DDA’s motion was granted in part and denied in part without prejudice and Judge Patti ordered that:

  1. “Plaintiff must pay to DDA the sum of $4,360.25, which constitutes the $2,125.00 in costs to upload the 8.5 GB of data to DDA’s counsel’s e-discovery platform, and $2,235.25 in attorneys’ fees (5% of the anticipated attorneys’ fees to conduct a privilege review, prepare a privilege log and prepare the non-privileged documents for production).
  2. Plaintiff must deliver the $4,360.25 check payable to City of Detroit Downtown Development Authority (although the check can be delivered to counsel for DDA) on or before 5:00 p.m. Monday, June 3, 2019. Plaintiff shall also promptly certify such payment to the Court, and include a copy of the check.
  3. DDA need not continue further efforts to produce documents until it is paid in full. Once paid, DDA shall have 45 days from that date to produce responsive documents, and a privilege log for any documents withheld on the basis of privilege.”

So, what do you think?  Do you agree with the distribution of costs?  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.

No Bates, No Problem for Native Files: eDiscovery Throwback Thursdays

If you read my blog post on Tuesday, you saw my coverage of Craig Ball’s blog post regarding whether we’ve “lost the war” on eDiscovery.  Craig particularly lamented the lack of focus on practical eDiscovery skills, especially in the eDiscovery conferences we attend, where they have moved on to “anti-discovery topics”, such as proportionality, privacy, General Data Protection Regulation (GDPR) and cybersecurity.  Certainly, that sentiment probably extends to publications as well, as we have covered a lot of those “anti-discovery” topics extensively.  But we used to cover a lot more of the practical eDiscovery best practices in the early years of the blog.  And, that got me thinking that maybe we should revisit some of those topics.

So, I’m starting a new series – Throwback Thursdays – here on the blog, where we will do just that – revisit some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.  That’s not a new idea: Craig did that on his blog in the past and we have re-played some of our own best practice posts (with some updates) when the topic came up again in our dealing with our clients.  We even had a previous “Throwback Thursday” series on this blog that my former colleague Jane Gennarelli wrote about the early days of technology in litigation support.  Nonetheless, we will start running this series on Thursdays (most of them, anyway) for a while as many of these topics were covered by this blog when we had a lot less readers than we do now.  It’s new if you haven’t heard it, right?  :o)

Our first Throwback Thursday post is one we published back in March 2011 – when the eDiscovery Daily blog was less than six months old.  It’s one that made me laugh when I read it – not because the advice is any less sound, but because I stated that is has become “commonplace” for parties to agree (and courts to accept) a file-level ‘Bates’ or Unique Production Identifier (UPI) where each file is named with a prefix and a sequential number.

Well, I might have overstated that a bit!

Especially when you consider this case from less than a year ago where a Kansas Magistrate Judge stated that “there is no dispute that documents in TIFF format are easier to work with and enable depositions and court proceedings to run more smoothly”.  It seems like many attorneys and some courts still have to learn that you can produce in native format and still support the idea of presenting in image format.

So, it was probably accurate when I stated that “it seems to ‘upset the legal apple cart’ when attorneys have to contemplate applying Bates numbers to native files.”  No kidding!  As I noted back then, “many native file types are not stored in a typical paginated, document-oriented format, [so] it is difficult to impossible to determine the number of pages for each file.  Because attorneys are so used to having a Bates stamp on each page of a document, many are still known to produce (and request production) in an image format, adding costs unnecessarily.  That would be like printing out every email in your Inbox before reading them.”

Back then, I talked about accepting a file-level Bates number where each file is named with a prefix and a sequential number (just like a Bates number, only they’re not stamped in the file, but used as the file name).  These productions are usually accompanied by a data file, containing metadata for loading into a review tool, which includes the original file name and path of each file being produced.  I also noted that “[i]f there’s a concern about referencing individual page numbers at deposition or trial, any files used as exhibits can still be converted to image (or printed) and a number applied.  You could simply use the UPI as the prefix, followed by a sequential number, so page 3 of the 11th file in the production could be stamped like this: PROD000011-00003.  This enables you to uniquely identify each native file, and still correlate the native file with pages when printed.”

Makes sense, right?  If so, why are we still debating this over eight years later?  Regardless, here’s the post we originally published back in March 2011.

So, what do you think?  Are your productions routinely in native format?   If not, why not?  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.