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
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
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.
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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:
Natalya Northrip and Emily Dorner will be presenting on two interesting eDiscovery topics this April; presentations will focus on litigation hold maintenance and best practices, as well as recordkeeping for human resources professionals. Presentations will take place on April 6, and April 26, respectively. Summaries of presentation content and links to sign up are provided
The Sedona Conference Working Group on Electronic Document Retention & Production (WG1) has released its Commentary on Proportionality in Electronic Discovery. The public comment period on the Commentary closed on January 31, 2017. This Commentary was much anticipated given the revamping of Rules 26(b)(1) and 37(e) of the Federal Rules of Civil Procedure in December 2015, which directly affected the scope of eDiscovery in federal litigation. The 2015 amendments were aimed at curbing gamesmanship and abuses in eDiscovery by elevating the importance of “proportionality” as the guiding principle governing the entire discovery process and by setting forth the framework for addressing the loss of electronically stored information (ESI) that was required to be preserved.
Under the amended Rule 26(b)(1), “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case….” (emphasis added). Rule 26(b)(1) also now includes the considerations that bear on proportionality, which were moved from the previous Rule 26(b)(2)(C)(iii), rearranged and expanded. The proportionality factors that courts will take into account are as follows: (1) the importance of the issues at stake; (2) the amount in controversy; (3) the parties’ relative access to relevant data; (4) the parties’ resources; (5) the importance of discovery for resolution; and (6) the burden or expense relative to benefit.
The amended Rule 37(e) provides guidance on the scope of the preservation effort that the court expects from litigants. Specifically, amendments to Rule 37(e) affected judicial analysis of sanctions for the loss of ESI (1) that “should have been preserved” in the anticipation or conduct of litigation (2) because a party failed to take “reasonable steps” to preserve it and (3) that cannot be restored or replaced through additional discovery. Upon making this finding, a court has to conduct additional analysis, the goal of which is to differentiate “bad faith” conduct from mere negligence, and order sanctions in accordance with the level of egregiousness. Under the amended Rule 37(e), courts will focus on a party’s intent to deprive its opponent of the benefits of the lost ESI and the resulting prejudice to the opponent. Where the court finds “bad faith” conduct, it may order the harsher sanctions, including adverse inference instruction, default judgment or dismissal. However, only measures limited to curing the prejudice are appropriate for cases where culpability is lacking.
Parties engaged in or preparing for litigation should consider how these amendments impact their overall litigation strategy, as well as their eDiscovery process. While the concepts of proportionality and good-faith discovery conduct are anything but new, the 2015 amendments provide the parties and courts with a more robust and defined framework for their application.
To help federal litigants and courts apply the new amendments in designing the eDiscovery process and resolving eDiscovery disputes, the Commentary on Proportionality offers Six Principles for consideration. The following are the key takeaways.
In an interesting decision regarding the spoliation of evidence via a mobile device, Magistrate Judge Terry F. Moorer determined that the newly amended Federal Rule 37(e) – enacted on December 1, 2015 – did not apply to the spoliation case, as the case was filed prior to the rule’s enactment. (Morrison v. Charles J. Veale, M.D., P.C., 2017 BL 21478, M.D. Ala., No. 3:14-cv-1020-TFM, 1/25/17).
Karla Morrison, a former employee of the medical practice Charles J. Veale, M.D., P.C. sued her employer in October of 2014 alleging that the practice violated the Fair Labor Standards Act. Following the close of discovery in August of 2016, the defendant filed a motion for sanctions for spoliation of evidence alleging that Morrison logged into her office email account after her termination and deleted emails from the account. The defendant bolstered this argument by alleging that Morrison added 2-step verification to her log-in process in April 2015 – almost 6 months after her termination. Morrison admitted to accessing her office email days after her termination to “close out” items, but denied any further use of the account.
For those unfamiliar, 2-step verification is an additional security measure that confirms a user’s identity through two components, usually a password followed by a code sent to a personal device, for example. When in place, it adds an additional level of security to an account, thus making it less susceptible to hacking.
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On September 19, 2016, Ross Compton told police that when he noticed a fire in his Middleton, Ohio home, he hastily packed suitcases, broke a window with his cane, and pushed his bags out the window, at which point he carried them to his car. After describing the scene to a 911 dispatcher, Compton added
The Eleventh Circuit recently refused to set aside a bank fraud conviction, rejecting defendant’s argument that advances in technology should change the way court’s adjudicate alleged violations of attorney-client privilege. While the appellate court agreed that defendant’s attorney-client privilege was breached by federal prosecutors, the court refused to overturn defendant’s 78-month sentence because he had failed to meet his burden to show he was prejudiced by the privilege breach.
The defendant, Stephen DeLuca, the president and sole shareholder of Delco Oil, Inc. in Florida, was convicted (after a mistrial) of fraudulently submitting false statement to lending institutions regarding the company’s accounts receivable and inventory and obtaining loans on reliance on the fraudulent information.
When the FBI raided Defendant’s office and seized computers and hard drives prior to his indictment, DeLuca notified the government that the data included privileged communications. The government offered, and DeLuca signed, a stipulation providing a procedure to exclude privileged communications from the investigation. It provided that an FBI computer analyst would segregate any communications to or from DeLuca’s attorneys based on a list of attorneys provided by DeLuca. These segregated communications would then go to an FBI “filter team” who were not members of the prosecution team, who would notify DeLuca if it believed any communications were not privileged, or that the privilege had been waived. DeLuca could then dispute the determination, and the communications at issue would not be provided to the prosecution team until a magistrate judge ruled as to privilege.
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In Part I, Part II, and Part III of this series, we discussed the key takeaways from Principles 1-3, 4-6, and 7-9, respectively, of The Sedona Conference WG1’s “Commentary on Defense of Process: Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process” (available for download here). The Commentary seeks to address what parties can do to avoid, or at the least prepare for, challenges to an eDiscovery process they apply in a given matter and how courts should address discovery disputes.
In today’s installment, we discuss the key takeaways from the remaining principles, Principles 10-13 of the Commentary.
Principle 10. A party may use any reasonable process, including a technology-assisted process, to identify and withhold privileged or otherwise protected information. A party should not be required to use any process that does not adequately protect its rights to withhold privileged or otherwise protected information from production.
Parties have a right to not reveal their privileged or otherwise protected information, and attorneys have a duty to protect such information belonging to their clients. The need to design an eDiscovery process that appropriately identifies and withholds privileged information is one of the highest priorities during any review and production undertaking. This is so because a party wishing to rely on the “claw-back” provisions of Federal Rule of Evidence 502(b) in case of inadvertent disclosure of privileged information would need to demonstrate that it “took reasonable steps to prevent disclosure.”
When it comes to privilege review, reasonableness and proportionality are evaluated depending on the circumstances at hand, including time constraints, resource limitations, the volumes of ESI, the complexity of the task, and the inevitability of human error. Case law suggests, for instance, that failing to review a sample of “non-hits” (documents that were not responsive to the search terms) to test the effectiveness of the selection criteria developed to identify privileged material, would be inherently “not reasonable.” See Victor Stanley Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (2008).
In Part I and Part II of this series, we discussed the key takeaways from Principles 1-3 and 4-6, respectively, of The Sedona Conference WG1’s “Commentary on Defense of Process: Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process” (available for download here). The Commentary seeks to address what parties can do to avoid, or at the least prepare for, challenges to an eDiscovery process they apply in a given matter and how courts should address discovery disputes.
The following are the key takeaways from Principles 7-9 of the Commentary.
Principle 7. A reasonable e-discovery process may use search terms and other culling methods to remove ESI that is duplicative, cumulative, or not reasonably likely to contain information within the scope of discovery.
Comment 7.a. Eliminating ESI that Is Cumulative or Duplicative
This principle is focused on striking the right balance between producing significant, unique, relevant ESI and holding back cumulative or duplicative ESI. To help achieve this goal, the Commentary suggests the use of various techniques, including de-duplication and email threading.
Comment 7.b. Eliminating ESI that Is Outside the Scope of Discovery
The Commentary proposes that in most cases, a culling process that removes a significant volume of irrelevant or duplicative information is reasonable, even if it also removes some relevant information. Obviously, it is best to reach an agreement on the culling strategy with the requesting party before proceeding.