By now, most litigators should know that they have an affirmative duty to advise their clients about the duty to preserve potentially relevant documents.  Despite this, the United States District Court for the Southern District of New York recently denied an attorney defendant’s motion for summary judgment in part because the record was not clear as to whether the attorney defendant fulfilled its obligations with respect to the duty to preserve.

Industrial Quick Search, Inc., Michael Meiresonne, and Meiresonne & Associates (collectively “Plaintiffs”) sued their law firm Miller, Rosado & Alogis, LLP (“Defendants”) for malpractice.  Neil Miller and Chris Rosado, named partners of the firm, were also individually named as Defendants.  Defendants represented Plaintiffs in an underlying copyright infringement lawsuit in which default judgement was entered against Plaintiffs for misappropriating confidential information, plagiarizing copyrighted material, and for deliberately destroying potentially relevant documents. Continue Reading FAILURE TO ADEQUATELY ADVISE CLIENTS ON THEIR PRESERVATION OBLIGATIONS CAN BE CONSIDERED MALPRACTICE

Eleven years into the court order levied on the NSA to preserve backup tapes containing data about the NSA surveillance efforts, it’s come to light that the NSA failed to take adequate steps to ensure the data was not deleted.  Tapes containing data between 2001-2007 were deleted in 2009, 2011, and 2016, showing a systemic problem with proper data preservation.  For an agency that arguably “saves everything,” this news is rather comical.   The NSA’s deputy director of capabilities apologized for the failure in an October declaration, while another NSA official claimed the tapes were deleted during “housecleaning efforts aimed at making space for incoming information.”  Oddly enough, there was no explanation as to why live incoming information would have been put on backup tapes, adding to the mystery of the real cause of the tape destruction.  Thus far, there have been no discussions of sanctions and no requests on U.S. District Court Judge Jeffrey White to do so, at least yet.  The NSA isn’t in a great position, however, since in May 2014, an NSA official assured the court that the data on the tapes was safe.  The NSA now claims they are using “extraordinary” effort to try and recover the lost data.  However, anyone familiar with how tape rotation works should understand it’s quite likely that the tapes were overwritten with new data, effectively making the old data permanently unreadable.  The facts seem to point to a clear case of spoliation, and this time, it’s by one of the U.S. Government agencies that possessed data storage capabilities unsurpassed by any in the world.

Seyfarth Shaw Offers Data Privacy & Protection in the EU-U.S. Desktop Guide and On-Demand Webinar Series

On May 25, 2018, the EU General Data Protection Regulation (“GDPR”) will impose significant new obligations on all U.S. companies that handle personal data of any EU individual. U.S. companies can be fined up to €20 million or 4% of their global annual revenue for the most egregious violations. What does the future passage of GDPR mean for your business?

Seyfarth’s eDiscovery and Information Governance (eDIG) and Global Privacy and Security (GPS) practitioners are pleased to announce the release of Data Privacy & Protection in the EU-U.S.: What Companies Need to Know Now, which describes GDPR’s unique legal structure and remedies, and includes tips and strategies in light of the future passage of the GDPR.

How to Get Your Desktop Guide:

To request the Data Privacy & Protection in the EU-U.S. Desktop Guide as a pdf or hard copy, please click the button below:

GDPR Webinar Series

Throughout August and October of 2017, Seyfarth Shaw’s attorneys provided high-level discussions on risk assessment tools and remediation strategies to help companies prepare and reduce the cost of EU GDPR compliance. Each segment is one hour long and can be accessed on-demand at Seyfarth’s Carpe Datum Law Blog and The Global Privacy Watch Blog.

For updates and insight on GDPR, we invite you to click here to subscribe to Seyfarth’s Carpe Datum Law Blog and here to subscribe to Seyfarth’s The Global Privacy Watch Blog.

A trial court opinion involving allegations of spoliation of text messages on a mobile phone in the Southern District of New York has gotten attention because of the application of legal preservation standards.  Ronnie Van Zant, Inc. v. Pyle 2017 BL 3018, S.D.N.Y. 17 Civ. 3360 (RWS), 8/23/17) is an interesting read, not just because it involves odd characters, intrigue and drama surrounding one of the greatest Southern Rock bands of all time.  It also includes some instructive information about the application of the “practical ability” test for preservation, and the uphill battle for witnesses who lose credibility in testimony about what they did and did not do in a preservation effort.

Not long after the tragic plane crash that resulted in the deaths of Lynyrd Skynyrd lead singer Ronnie Van Zandt and his co-founding band member Steven Gaines,  Artimus Pyle, the former drummer, entered an agreement with the surviving heirs and other members of the band.  The agreement involved promises to never perform as “Lynyrd Skynyrd,” or to generally profit from the name of the band or the tragic deaths of Van Zant or Gaines without approval of the original parties to the agreement.  Their dramatically named “blood oath” agreement was more concretely memorialized in a Consent Order in 1988, following other litigation, which Pyle signed.

Over 20 years after the 1988 Consent Order, the drama that spawned the litigation began in a story that sounds like it came from a Netflix mini-series.  A film director named Jared Cohn, who worked under contract for an independent record label-turned movie producer, Cleopatra Records, Inc. (“Cleopatra”) reached out to Pyle about making a movie centered around the band and Pyle’s life in it.  Cohn was hired by the founder and co-owner of Cleopatra Records, Brian Perera, who is another interesting character in his own right. Pyle met and consulted with Perera on multiple occasions about ideas for a film generally depicting his life and the plane crash, which Pyle survived.  In their first conversations, Pyle did not mention the 1988 Consent Order, but the Order eventually was delivered to Cleopatra.  The copy of the Order was also eventually followed by a “cease and desist” letter and other correspondence from the Plaintiffs’ counsel.  All the while, Cleopatra’s movie production work continued. Continue Reading Spoliation and Southern Rock

Seyfarth eDiscovery Partner Richard Lutkus, along with William Lederer from Relativity and Patrick Zeller of Gilead Sciences, Inc., will host a panel discussion titled “Brave New Words: Cloud Data Collection, Processing, and Hosting” at this year’s RelativityFest on October 24, 2017.

This session will provide attendees with information about new data collection methods with tools like Heureka and Harvester, along with considerations for working with RelativityOne, data privacy, and security. Additionally, best practices surrounding the General Data Privacy Regulation (GDPR), international data transfer with EU entities, secure management of hosting (wiping cloud data) and SSD wiping technologies will be discussed.

RelativityFest is an annual conference designed to educate and connect the e-discovery community. The three-day festival in Chicago will feature panel discussions, hands-on labs, and breakout sessions to discuss best practices. For more information, or to register to attend, please visit https://relativityfest.com/.

Seyfarth eDiscovery attorneys Jason Priebe and Natalya Northrip will present “A Practical Roadmap for EU Data Protection and Cross-Border Discovery” at this year’s RelativityFest on October 24, 2017.

This presentation will provide attendees with practical tips for leveraging the new Sedona International Principles to help in your compliance with stringent GDPR requirements, and in seeking immediate help under the EU-U.S. Privacy Shield.

RelativityFest is an annual conference designed to educate and connect the eDiscovery community. The three-day festival will feature panel discussions, hands-on labs, and breakout sessions to discuss best practices for eDiscovery, Information Governance, and Data Privacy. For more information, or to register to attend, please visit https://relativityfest.com/.

Court Denies Plaintiff’s Motion to Compel

In Mirmina v. Genpact LLC, 2017 BL 260425, D. Conn., Civil No. 3:16CV00614 (AWT), the Court denied Plaintiff’s motion to compel additional responsive electronic communications despite the fact that an individual directly involved in the underlying claims of the suit “self-identified” potentially responsive emails.  The Court based its decision a number of important  factors:

  • Defendant Genpact’s in-house counsel produced an affidavit outlining the process used to preserve and search potentially responsive emails;
  • Genpact’s in-house counsel supervised the preservation and search process;
  • Plaintiff Mirmina was unable to identify any authority stating that self-identification was improper;
  • Mirmina was also unable to identify any emails that Genpact had not produced and was merely speculating that Genpact’s email production was deficient.

Case Background

Scott Mirmina, a former Genpact recruitment manager, sued his previous employer, a professional services firm, alleging age, race, and gender discrimination.

In May of 2017, Plaintiff Mirmina filed a Motion to Compel additional responses to specific discovery requests.  This motion was denied in June 2017, except for materials described in Genpact’s initial disclosures that had not yet been produced.

In July of 2017, Mirmina filed another Motion to Compel asking the court to force Genpact to produce additional responsive emails.  Mirmina stated that he was “concerned” that Genpact had withheld responsive emails and that Genpact’s search for responsive emails was inadequate because an employee directly involved with the underlying issues in the litigation had self-identified potentially responsive emails.

The Court denied Mirmina’s Motion to Compel after Genpact’s counsel described the process used to identify responsive emails.  Specifically, Genpact’s in-house counsel averred that they:

  • issued a timely and detailed litigation hold to potential ESI custodians;
  • provided instructions to the custodians on how to search for potentially responsive emails;
  • provided custodians with specific search parameters to identify potentially responsive emails;
  • explained importance of thoroughly searching for potentially responsive emails; and
  • provided guidance to custodians when they had questions about the search process.

The Court also determined that Mirmina’s allegations that responsive emails had not been produced was based on mere speculation.  The court held that this speculation was insufficient to require Genpact to conduct additional searches for potentially responsive emails.

Practical Takeaways

Self-identification of potentially responsive documents by custodians is not usually recommended.  There are obvious risks involved, including custodians not wanting to produce documents that could be damaging for themselves or their employer.  Further, there are risks involved in having custodians determine what may or may not be responsive to document requests. However, the Court’s decision in this matter describes a scenario in which self -identification of emails may be defensible.

The Court indicated that the primary driver for denying Mirmina’s Motion to Compel was the affidavit provided by Genpact’s in-house counsel detailing Defendant’s document identification and preservation process.  The most important practical takeaway from the Court’s ruling was that self-identification can be defensible, so long as a rigorous process is followed and documented.  This process includes drafting a timely and detailed litigation hold notice, providing instruction to custodians on how to identify potentially relevant documents, and answering questions that custodians may have throughout the process.

Finally, the Court made clear that purely “speculating” that an opposing party’s production is deficient is not enough to compel additional searches or document productions.  In order to compel an additional search for communications, a moving party must provide evidence to support its claim of a deficient production.

Tuesday June 20, 2017

1:00 p.m. to 2:30 p.m. Eastern

12:00 p.m. to 1:30 p.m. Central

11:00 a.m. to 12:30 p.m. Mountain

10:00 a.m. to 11:30 a.m. Pacific

Registration

There is no cost to attend this program, however, registration is required.

 

Discovery is often the most expensive, frustrating and burdensome aspect of litigation and many cases settle before discovery is complete in order to avoid these costs.  A new mandatory pilot program in the US District Court for the Northern District of Illinois will change all that by requiring extensive discovery early on in litigation.    Effective June 1, 2017, the Federal Court in the Northern District of Illinois will embark upon a three-year mandatory pilot program, known as the Mandatory Initial Discovery Pilot Project (MIDPP) which imposes court-ordered discovery and early production of electronically stored information (ESI) in almost all civil cases.  Please join Seyfarth attorneys to learn about the new pilot program and how it will affect litigation involving your company. In this webinar, the panel will review the MIDPP and answer the following questions:

  • Who does the MIDPP affect?
  • What does the MIDPP require?
  • When does the MIDPP take affect?
  • Where is the MIDPP taking place?
  • Why was the MIDPP implemented?
  • How do companies comply with the MIDPP?

Speakers 

Jordan Vick – Seyfarth Shaw

Lou Chronowski – Seyfarth Shaw

Jay Carle – Seyfarth Shaw

 

If you have any questions, please contact events@seyfarth.com.

*CLE Credit for this webinar has been awarded in the following states: CA, IL, NJ and NY. CLE Credit is pending for GA, TX and VA. Please note that in order to receive full credit for attending this webinar, the registrant must be present for the entire session.

In Realpage Inc. v. Enter. Risk Control, LLC, 2017 BL 102339 (E.D. Tex. 2017), the court ordered Enterprise Risk Control, LLC (“Enterprise”) to produce forensic images of devices used by a former Realpage employee to a forensic neutral in order to determine whether any source code was recoverable pertaining to Realpage’s allegations of misappropriation.

Background

After leaving employment with Realpage in 2012, Tom Bean (“Bean”) started his own software development company named IDC. Bean and IDC were hired by former Realpage employee, and active Enterprise employee, Lonnie Derden (“Derden”) to design a vendor compliance application that was “completely different” than the one in place at Realpage. In July 2013, Enterprise hired Bean as a full-time employee and it was at that time that Bean transferred all of his source code for the vendor compliance application from IDC’s computers to Enterprise’s computers. According to Bean’s affidavit, he deleted all versions of his source code from IDC’s computers after the transfer.

Pursuant to this lawsuit, Enterprise made the vendor compliance application source code from July 2013 to the present available to Realpage for their analysis. During their review, Realpage found comments in the source code referencing dates from 2012 and early 2013, which Realpage argued indicated that versions of the source code from that point in time must exist. While the court rejected this argument, they recognized that Realpage’s complaints surround code that existed on or before the date that Bean transferred the source code to Enterprise. The court concluded that “a tailored [forensic] examination is appropriate at this time to determine whether the missing code is recoverable or to enable effective cross-examination as to its destruction.” Id. at *2. Continue Reading Court Orders Enterprise to Engage in Forensic Imaging and Analysis

In January 2017, The Sedona Conference Working Group on International Electronic Information Management, Discovery, and Disclosure (WG6) issued the much-anticipated International Litigation Principles on Discovery, Disclosure & Data Protection in Civil Litigation (Transitional Edition). This publication updates the 2011  International Litigation Principles, which preceded the 2013 Snowden revelations and the Schrems decision invalidating the U.S.-EU Safe Harbor.  It also incorporates adoption and implementation of the EU-U.S. Privacy Shield, and the approval of the EU General Data Protection Regulation (GDPR), which is set to replace the 1995 EU Data Privacy Directive in May 2018.  Many of these developments are consistent with the focus on “proportionality” of discovery in the 2015 amendments of the U.S. Federal Rules of Civil Procedure.

Given the complex and dynamic EU data protection  landscape – where the new Privacy Shield has not been tested, and before the GDPR has even taken effect, – WG6 has aptly designated this as a “Transitional” edition.  This edition provides interim best practices and practical guidance for courts, counsel and corporate clients on safely navigating the competing and conflicting issues involved in cross-border transfers of EU personal data in the context of transnational litigation and regulatory proceedings.  Following are the publication’s Six Transitional International Litigation Principles:

Continue Reading The Sedona Conference WG6 Issues “Transitional” International Litigation Principles