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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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).


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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.


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The UK Ministry of Defence (“MoD”) lost a high-profile case after failing, first, to comply with a trial judge’s disclosure order and failing to meet a deadline for compliance with the court’s “Unless Order” which warned that non-compliance would result in MoD having its defences struck out and judgment entered for the claimant.  The day before the Unless Order’s 21 October 2016 compliance deadline, the MoD applied for an extension of time and relief from the sanctions, but The Honourable Mrs. Justice Andrews of the High Court of England and Wales saw no reason to ignore or delay the sanctions.

The landmark case, Eaglesham v The Ministry of Defence, was brought five years ago by former Royal Marine commando corporal Philip Eaglesham, who alleged that the MoD had failed in its duty of care in treatment when he became ill with what is known as “Q Fever” (Coxiella Burnetti) as he was traveling back to the UK after service in Afghanistan.  Eaglesham contracted the chronic condition two days before he was due to return home from a tour of duty in 2010.  He first experienced flu-like symptoms which escalated into muscular weakness, and Eaglesham now requires a wheelchair.  The quantum of his claim is estimated to be in the order of £6 – £8 million — soon payable by the MoD because of the disclosure failures.  In addition, Eaglesham’s victory could pave the way for Q Fever claims by other MoD veterans. 
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In Part I of this series, we discussed the key takeaways from Principles 1-3 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 4-6 of the Commentary.

Principle 4. Parties may reduce or eliminate the likelihood of formal discovery or expensive and time-consuming motion practice about an e-discovery process by conferring and exchanging non-privileged information about that process.

Comment 4.a. Benefits of Sharing Information

This principle is based on the importance of cooperation in the discovery process. This includes disclosures on the specifics of discovery processes, as contemplated by Rule 26(f) of the Federal Rules of Civil Procedure, and as encouraged or required by numerous courts.

Often parties are unwilling to share details about their discovery process until and unless the complaining party can show to the court that reasonable grounds exist for questioning some aspect of that process. This strategy sometimes results in nothing more than a short-term benefit, since courts typically require some disclosure on these issues once a discovery-dispute motion is filed.

The Commentary points out that voluntary disclosures of such information actually may be in the disclosing party’s self-interest, as it may help address concerns of the challenging party and, thus, eliminate unnecessary motions, hearings, and discovery about discovery. Furthermore, by reaching an agreement on discovery process, the responding party greatly reduces the chances that the requesting party will later complain about alleged deficiencies in the process. A good time to make some of these disclosures and to seek an agreement on the process is a Rule 26(f) conference.


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The Sedona Conference Working Group on Electronic Document Retention & Production (WG1) has proposed a set of principles and practical guidance for the eDiscovery process, in its recent publication, the “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 public comment period on the Commentary has now closed.

By focusing on the defensibility, the Commentary endeavors to provide guidance to parties and their counsel who design and execute eDiscovery plans and processes and who may be called upon to defend the appropriateness and efficacy of their discovery efforts. Indeed, considerations of defensibility of eDiscovery process underlie every decision in-house counsel and their eDiscovery attorneys make, from pulling the trigger on issuing a legal hold notice to completing the last production in the case.

The responsibility for the eDiscovery process is a shared one, falling “on counsel and client alike. At the end of the day, however, the duty to preserve and produce documents rests on the party.” Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 436 (S.D.N.Y. 2004). Failure to fulfill this responsibility, which by nature lacks bright-line rules, comes with potential for substantial monetary and case-destroying sanctions.

The Commentary proposes Thirteen Principles designed to establish the parameters for reasonable and defensible eDiscovery process within a given matter. Today, we will discuss the key takeaways found in Principles 1-3. We will address the remaining Principles over the next few days.


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Over the past few years, there has been a significant increase in the number of tools available to attorneys to analyze and review electronically stored information (“ESI”) that has been collected from clients or produced by opposing parties. While courts and attorneys continue to become

Over the past few years, there has been a significant increase in the number of tools available to attorneys to analyze and review electronically stored information (“ESI”) that has been collected from clients or produced by opposing parties. While courts and attorneys continue to become comfortable with the use of tools like technology-assisted review, email threading, document clustering, and document categorization to facilitate the actual review of documents, there are a host of top-down methods for analyzing the document population as a whole that can provide helpful insight that would be difficult, if not impossible, to obtain through a document-by-document analysis.

On November 10, 2016, Law360 released an article entitled Data Analytics: How Parties Are Using Tools Beyond TAR that outlined a number of case studies where these “big data” tools can directly assist in identifying potential areas of interest or gaps in available ESI.


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At the end of September, the U.S. the U.S. District Court for the District of Kansas held that a warrant for an entire email mailbox did not violate the parameters of the Fourth Amendment in In re Microsoft Corp., 2016 BL 320715, D. Kan., No. 16-MJ-8036, 9/28/16.  Here, the court looked to balance an individual’s right to privacy and the government’s capability to effectively prosecute suspected criminals.


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