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Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was published yesterday.  Here’s the second part.

Modern Litigation History

First, let’s consider the rise in class action and MDL litigation.  In 1962, U.S. Supreme Court Chief Justice Earl Warren appointed a special committee to improve the efficiency of the legal system. Alfred P. Murrah, CJ of the 10th Circuit, was named chairman and his committee members came up with then revolutionary solutions that are still used today, ideas such as combining depositions and discovery and combining lawsuits involving similar complicated claims into a single case.

By 1967, backlogs in the Federal court system had been cleared and the committee discovered large numbers of similar, complex cases were common across the U.S. court system. They recommended that a permanent panel be set up to handle these types of matters and Congress created the JPML in 1968.

Now, by some estimates, as many as one in every seven civil lawsuits filed in federal court are or will become part of a multi district litigation and these cases involve as many as 60% of all plaintiffs in Federal civil suits.  Since a high number of these cases settle, the number of trial associated with these litigants is also dramatically lessened.

Second, since the 1986 U.S. Supreme Court decisions in Matsushita Electrical Industrial Co. v. Zenith Radio Corp., Anderson v. Liberty Lobby, Inc., and Celotex Corp. v. Catrett, all of which encouraged the use of summary judgment, the increase in summary judgement motions has increased and seems clearly linked to the decrease in the number of trials.

Third, let’s consider that a high number of cases are now resolved by nonjudicial means, through alternative dispute resolution (ADR) methods such as compulsory mediation or arbitration clauses in contracts.

Fourth, changes in the FRCP which emphasize docket management have led many judges to become more active in management of the case before them.  FRCP 16 in particular was amended to require judges to monitor closely the management of cases (The Proposed FRCP Amendments Intended to Foster “Judicial Management”) and these changes have helped push early case resolution.

Finally, of course, the overall cost of litigation has risen dramatically. Bluntly put, the cost of making a wrong decision on whether to litigate wrong is getting more expensive. A seminal study of both federal and state court data in 2004 by DecisionSet found that making a wrong decision on litigating can cost a plaintiff about $43,000 and for defendants, who were less often wrong about going to trial, the cost could easily exceed $1 million.

We’ll publish Part 3 – eDiscovery Considerations – on Thursday.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  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.

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

I have heard a great deal of anecdotal discussion lately about fewer and fewer cases going to trial, with an implied criticism that the cost of eDiscovery is somehow at the root of this phenomenon.  Indeed, the national decline in trials, both criminal and civil, has been noted in law journal articles, bar association studies and judicial opinions.

I decided to investigate both of these statements and was surprised by what I found. First, the decrease in cases going to trial is nothing new and in fact far pre-dates the eDiscovery changes to the FRCP.  Second, there are several clear reasons for this decline, all unrelated to any eDiscovery issues.

We’ll explore these reasons and other issues in this paper, as follows:

  1. Background
  2. Modern Litigation History
  3. eDiscovery Considerations
  4. Conclusions

Background

Each year the Administrative Office of the United States Courts (AOC) is required to provide a report of statistical information on the caseload of the federal courts for the 12-month period ending March 31.  According to AOC statistics, from 1962 through 1985, federal civil trials doubled, increasing every year. Trials then began declining in 1986 with a dramatic decline commencing in 1990. By 2006 there were only half the number of federal civil trials that there were in 1962 and since 2006, civil trials have continued to decline although at a much slower pace.

This phenomenon was so well known by the late 90’s that it was actually termed the “vanishing trial” by numerous commentators and led to many dire pronouncements about the future of the US legal system. Typical was a 2005 pronouncement by Chief Judge William G. Young of the U.S. District Court for the District of Massachusetts that “[t]he American jury system is dying. It is dying faster in the federal courts than in the state courts. It is dying faster on the civil side than on the criminal, but it is dying nonetheless.”  (What the Vanishing Trial Lawyer Means for In-House Counsel, and 5 Things They Can Do, Corporate Counsel, Oct. 14, 2016)

But the AOC report for 2017 also showed that the number of civil case filings was actually up 6%, a trend that has been present during the same period that the number of trials declined. Which clearly begs the question, if case filings continue to rise but trials continue to decline, what is going on in between those two events to cause the decline?

We’ll publish Part 2 – Modern Litigation History – tomorrow.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  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.

Attention Houstonians! Come “Wine” about eDiscovery with ACEDS: eDiscovery Socialization

I’ve told several people that some of my best posts come after a couple of glasses of wine (at least they look great to me!), but I don’t usually get to write about wine in the actual blog.  This is one of those rare times.

On Thursday, July 12, the Houston Chapter of the Association of Certified E-Discovery Specialists (ACEDS) is hosting a happy hour and social in Houston (of course, duh!).  It will be at the Sonoma Wine Bar (upper Kirby location, you have to specify because there are two locations) at 2720 Richmond Avenue, Houston, Texas 77098.  The event will be from 5:30pm to 7:30pm.  Join the ACEDS Houston Chapter along with the generous sponsor of the event, Ernst & Young, for an evening of networking and fun (inside info, I’m told both Ernst & Young will be there, so you don’t want to miss it). :o)

You can click here to RSVP for the event.  Or contact Jean Rivers at jrivers@bafirm.com for more information.  If you’re in Houston (or going to be here on that date), come join us at the wine bar voted “best wine bar ambience in Houston by customers”.

Here’s the graphic to show you the wine bar and to reiterate what I just said (from the department of redundancy department):

So, what do you think?  Do you ever get a chance to network with eDiscovery colleagues?  Well, now’s your chance!  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.

Need an eDiscovery Project Manager? Here’s the Guy Who Literally Wrote the Book: eDiscovery Best Practices

There’s a new consulting business aimed at helping organizations better leverage project management in eDiscovery, litigation support and legal technology and it’s founded by the guy who literally wrote the book on project management in eDiscovery.

As covered in LegalTech® News (eDPM Advisory Wants to Help You Get Serious About Project Management, written by Gabrielle Orum Hernández), litigation e-discovery veteran Michael Quartararo, formerly the director of litigation services at Stroock & Stroock & Lavan, recently struck out on his own to form eDPM Advisory Services, a consulting business aimed at helping organizations better leverage project management for specific projects or broader workflow.

“I think there’s a lot of talk about project management in the space, in law firms and corporate legal operations, even on the service provider side. But my experience and exposure throughout the industry shows me that a lot of folks talk about it, but do they really understand it? Do they have the knowledge and expertise to really implement it at their firm at their corporate legal department or service provider organization?” Quartararo said.

eDPM Advisory plans to operate in a few different ways. The company can assist when organizations are looking for guidance on one particular matter or case. “Maybe things are off the rails a little, maybe they’re just starting, maybe they’re knee deep in the project on a case,” Quartararo noted, saying that eDPM can then “just parachute in and help get some clarity on that matter.”

The new company is also available to help organizations design or re-tune long-term project management strategies, and provide training for organizations about how to best leverage project management in their work.

As noted in the article, opening a business has been a long-held dream of Quartararo’s, along with writing a book – which he already did and self-published in 2016: Project Management in Electronic Discovery (available on Amazon here).  See, I told you he literally wrote the book!  :o)  Speaking personally, Mike is one of the sharpest guys I know in the industry – I’ve attended several presentations of his at various conferences and they’re always very informative – and a good guy as well, so I expect he will do great in his new venture.

So, what do you think?  How do you handle project management in your eDiscovery projects?  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.

Law Firm Partner Says Hourly Billing Model “Makes No Sense” with AI: eDiscovery Trends

Artificial intelligence (AI) is transforming the practice of law and we’ve covered the topic numerous times (with posts here, here and here, among others).  And, I’m not even including all of the posts about technology assisted review (TAR).  According to one law firm partner at a recent panel discussion, it could even (finally) spell the end of the billable hour.

In Bloomberg Law’s Big Law Business blog (Billable Hour ‘Makes No Sense’ in an AI World, written by Helen Gunnarsson), the author covered a panel discussion at a recent American Bar Association conference, which included Dennis Garcia, an assistant general counsel for Microsoft in Chicago, Kyle Doviken, a lawyer who works for Lex Machina in Austin and Anthony E. Davis, a partner with Hinshaw & Culbertson LLP in New York.  The panel was moderated by Bob Ambrogi, a Massachusetts lawyer and blogger (including the LawSites blog, which we’ve frequently referenced on this blog).

Davis showed the audience a slide quoting Andrew Ng, a computer scientist and professor at Stanford University: “If a typical person can do a mental task with less than one second of thought, we can probably automate it using AI either now or in the near future.” AI can “automate expertise,” Davis said. Because software marketed by information and technology companies is increasingly making it unnecessary to ask a lawyer for information regarding statutes, regulations, and requirements, “clients are not going to pay for time,” he said. Instead, he predicted, they will pay for a lawyer’s “judgment, empathy, creativity, adaptability, and emotional intelligence.”

Davis said AI will result in dramatic changes in law firms’ hiring and billing, among other things. The hourly billing model, he said, “makes no sense in a universe where what clients want is judgment.” Law firms should begin to concern themselves not with the degrees or law schools attended by candidates for employment but with whether they are “capable of developing judgment, have good emotional intelligence, and have a technology background so they can be useful” for long enough to make hiring them worthwhile, he said.

The panelists provided examples of how the use of artificial intelligence can enhance lawyers’ efficiency in areas such as legal research, document review in eDiscovery, drafting and evaluating contracts, evaluating lateral hires and even assessing propensities of federal judges.  Doviken indicated that a partner at a large firm had a “hunch” that a certain judge’s rulings favored alumni of the judge’s law school. After reviewing three years’ worth of data, the firm concluded the hunch was valid, assigned a graduate of that law school to a matter pending before that judge, and started winning its motions.

“The next generation of lawyers is going to have to understand how AI works” as part of the duty of competence, said Davis.  Want one example of how AI works that you are probably already using?  Click here.

So, what do you think?  Do you think that AI could spell the end of the billable hour?  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.

Court Sanctions Plaintiff After Jury Verdict for Failing to Disclose Third Party Communications: eDiscovery Case Law

In Singer Oil Co., LLC v. Newfield Exploration Mid-Continent, Inc., No. CIV-16-768-M (W.D. Okla. June 5, 2018), Oklahoma District Judge Vicki Miles-LaGrange ruled that the plaintiff did violate Federal rules by not disclosing the communications its counsel had with the third parties referenced in plaintiff’s counsel’s time records, but found that the defendant’s proposed sanction was an “extremely harsh sanction not warranted by the circumstances involved” and limited the plaintiff sanction to require the plaintiff to pay the attorneys’ fees the defendant incurred in filing its motion for sanctions and its reply.

Case Background

In November 2016, the plaintiff served its responses to the defendant’s discovery requests, representin that it had fully and truthfully answered the interrogatories and had produced or would produce all responsive documents to the requests for production.  The plaintiff subsequently confirmed that all responsive documents had been produced, did not claim privileged status for any unproduced documents and did not supplement its response to interrogatories or requests for production in the case.

After this case was tried to a jury in November 2017, the plaintiff filed its Amended Motion to Recover Attorney’s Fees. During review of the time records associated with that motion, the defendant became aware for the first time that throughout the course of this litigation, the plaintiff’s attorney frequently corresponded by e-mail with numerous third parties regarding several of the issues that were disputed in this litigation and the two wells at issue in the case, with the defendant asserting that at least two of the communications took place before plaintiff served its discovery responses.  In its response, plaintiff asserted that it did not violate the Court’s orders, did not violate the spirit of the Court’s orders, did not violate the letter or spirit of the discovery code and contended that the majority of the communications would fall under the work product doctrine.

Judge’s Ruling

After considering Federal Rules 26(g)(1),(3), 26(e)(1)(A) and 37(c)(1), Judge Miles-LaGrange found that “while plaintiff may not have intentionally violated the above-referenced discovery rules, plaintiff did violate those rules by not disclosing the communications its counsel had with the third parties referenced in plaintiff’s counsel’s time records. Request for Production No. 5 specifically requests any and all correspondence between plaintiff (including plaintiff’s counsel) and any other person or entity with respect to Newfield, the Smith Well, the Edgar Well, or the subject of this lawsuit; the Court finds the communications at issue would fall within this request for production. Additionally, while these communications likely would be protected by the work product doctrine, plaintiff did not assert such and did not provide Newfield with a privilege log such that Newfield could contest any claim of privilege. However, the Court finds that based upon plaintiff’s description of the communications at issue, any lack of production only had a very minimal, if any, impact on this case.”

As for an appropriate sanction against the plaintiff, Judge Miles-LaGrange stated: “In light of the amount of attorneys’ fees requested by plaintiff and the amount of costs taxed, the Court finds Newfield’s proposed sanction is an extremely harsh sanction not warranted by the circumstances involved. Having reviewed the parties’ submissions, the Court finds an appropriate sanction would be to require plaintiff to pay the attorneys’ fees Newfield incurred in filing its motion for sanctions and its reply.”

So, what do you think?  Do you think that was a sufficient sanction for failing to produce relevant ESI?  Please share 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.

Tinder Date Murder Case Highlights the Increasing Complexity of eDiscovery in Criminal Investigations: eDiscovery Trends

With things like social media, electronic purchases, GPS tracking, and the Internet of Things, a normal day in anyone’s life creates an in-depth data trail. So, it’s no surprise that more and more, electronic evidence plays a key component in criminal investigations. While eDiscovery technology is mostly used in the civil courts, namely because corporate and government organizations have more resources than municipal, county, and even state law enforcement agencies to conduct reviews of large data-sets, it’s still worthwhile to look at the varied ways electronically stored information (ESI) is used to help detectives piece together a chain of events in order to solve a crime.

In an article published in The Daily Beast this week, we find the seemingly mismatched couple, 51-year-old Aubrey Trail and 24-year-old Bailey Boswell, charged with the murder of a 24-year-old Nebraska woman, Sydney Loofe. The story echoes the Starkweather / Fugate crime spree throughout the same region 60 years ago, only this time digital evidence led investigators to the perpetrators.

Trail and Boswell were arrested as part of a gold coin theft racket in November, but after further investigation, are now charged with Loofe’s murder, who was last seen November 15th before going on a Tinder date with Boswell. Police found the remains of Loofe’s body in a field a few weeks later, and in the months that followed, used a wide variety of ESI, along with traditional forensics, to link Trail and Boswell to the murder. The list of evidence pieced together is remarkable from an eDiscovery point of view:

  • Tinder Profiles: 140 messages between Loofe and Boswell in the days before November 15th were pulled from their online dating profiles. The last was on Nov. 15 at 6:54 p.m., when Boswell said she’d arrived at Loofe’s apartment. Police also found that Boswell went by “Audrey” on her online-dating profile.
  • Snapchat Photo: Loofe sent a selfie to a friend via Snapchat on November 15th with the caption, “Ready for my date.”
  • Facebook Videos: Trail and Boswell both posted Facebook videos claiming innocence while police were looking for them. In one, Boswell said she was “Audrey on Tinder and a few other names because I have warrants.”
  • iPhone Reset: After her arrest, Boswell gave investigators permission to search her iPhone 7, which they found had been reset to factory default settings on November 17.
  • Cellphone Pings/GPS Locations: Loofe’s phone last pinged a cell tower near Wilber, where Boswell and Trail lived in a basement apartment. When detectives searched that residence, the landlord, who lived upstairs, “reported a strong odor of bleach coming from the basement.” Data from Boswell’s phone showed its location was “in close proximity to the area where the remains were discovered Dec. 16th.”
  • Security Video Footage: Security footage from a local Home Depot showed Trail and Boswell on Nov. 15 around 10:35 a.m., shopping for tools and supplies that could be used to cover up the crime.
  • Phone Calls from Jail: In two different phone calls, one to the Lincoln Journal Star and the other to the Omaha World-Herald, Trail gave different accounts, claiming he unintentionally killed Loofe in a sex game gone wrong.

All of this led to a confession from Trail, stating that he had killed Loofe, and then he and Boswell covered up the crime scene and disposed of the body.

Using electronic evidence to solve crimes is nothing new, but now more than ever, the digital footprint that individuals and organizations leave is staggering in its depth and variance. At the same time, it’s amazing how skilled investigators are using the raw data left behind in order to put together cases in both the criminal and civil courts. The common denominator with both then becomes the ability to preserve, collect, and review this data in a timely and affordable fashion, in order to get the facts as quickly and efficiently as possible.

So, what do you think?  How do you see the influx of new data sources affecting your eDiscovery practices and policies in the future?  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.

GDPR is Here! Is Your Law Firm Fully Prepared for It? Maybe Not: Data Privacy Trends

Unless you live under a rock, you know that the deadline for compliance with Europe’s General Data Protection Regulation (GDPR) has come and gone (it was May 25 – almost three weeks ago now).  So, does that mean your law firm is fully ready for it?  Based on the results of one survey, the odds are more than 50-50 that they’re not.

In Legaltech® News (Not Just Corporate: Law Firms Too Are Struggling With GDPR Compliance, written by Rhys Dipshan), the author covers a recent Wolters Kluwer survey which was conducted among 74 medium (26-100 staff members) to large (100-plus) law firms.  The result?  Less than half (47 percent) feel fully prepared to address the new GDPR requirements.  Another 16 percent of respondents said they were somewhat prepared and more than a third (37 percent) had made no specific preparations.

Barry Ader, vice president of product management and marketing at Wolters Kluwer, noted that part of the reason why many law firms were unprepared for GDPR was because they thought there would be an extension to the deadline. “Many of the law firms kind of half expected that there would be a delay, and they wouldn’t have had to solve the problem by May 25,” he said.  Ader also noted that the lack of preparation was also a sign that “law firms just don’t have the necessary skills, people, and budget to figure out how to handle GDPR.”

Other notable results:

  • Fewer than half of respondents (43 percent) had assigned a Data Protection Officer, a requirement of many organizations under GDPR. However, nearly 60 percent had assigned an individual, team or outside consultant to lead GDPR compliance efforts. And, approximately 72 percent of those surveyed were also investing in cybersecurity solutions due to the new regulation.
  • With regard to employee training on security, the survey found that only 43 percent of law firms conducted security and privacy training annually, while 24 percent had done training in the past three years. An additional 15 percent said that while they did not currently train employees, they were planning to do so in the near future. Amazingly, 17 percent of respondents did not conduct training and had no plans to train at all.

If you’re a client of a law firm, you may want to check to see if your firm can demonstrate full preparedness for GDPR.  If you believe this survey, chances are greater that they can’t do so than they can.

So, what do you think?  Is your organization fully prepared for GDPR?  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.

Court Rejects Search Terms by Both Sides as Overly Inclusive: eDiscovery Case Law

Monday, I asked for a call for key eDiscovery case law cases in 2018 to cover.  While this one wasn’t overtly suggested, it was covered by Ralph Losey in his excellent e-Discovery Team® blog the same day, so that works too… :o)

In Am. Municipal Power, Inc. v. Voith Hydro, Inc., No. 2:17-cv-708 (S.D. Ohio June 4, 2018), Ohio Magistrate Judge Elizabeth A. Preston Deavers ruling on the parties’ arguments from a May discovery conference, concluded that search terms proposed by both parties in the case were overly inclusive.

Case Background

The parties provided extensive letter briefing for a discovery conference on May 24, 2018 regarding discovery disputes relating to the production of ESI and other documents, with the parties’ dispute centered around two ESI-related issues: (1) the propriety of a single-word search by Project name proposed by the defendant which it sought to have applied to the plaintiff’s ESI and (2) the propriety of the plaintiff’s request that the defendant run crafted search terms which the plaintiff proposed that were not limited to the Project’s name.

Judge’s Ruling

After careful consideration of the parties’ letter briefing and their arguments during the discovery conference, Judge Deavers concluded as follows with regard to the defendant’s proposed search terms:

“Voith’s single-word Project name search terms are over-inclusive. AMP’s position as the owner of the power-plant Projects puts it in a different situation than Voith in terms of how many ESI “hits” searching by Project name would return. As owner, AMP has stored millions of documents for more than a decade that contain the name of the Projects which refer to all kinds of matters unrelated to this case. Searching by Project name, therefore, would yield a significant amount of discovery that has no bearing on the construction of the power plants or Voith’s involvement in it, including but not limited to documents related to real property acquisitions, licensing, employee benefits, facility tours, parking lot signage, etc. While searching by the individual Project’s name would yield extensive information related to the name of the Project, it would not necessarily bear on or be relevant to the construction of the four hydroelectric power plants, which are the subject of this litigation. AMP has demonstrated that using a single-word search by Project name would significantly increase the cost of discovery in this case, including a privilege review that would add $100,000 — $125,000 to its cost of production. The burden and expense of applying the search terms of each Project’s name without additional qualifiers outweighs the benefits of this discovery for Voith and is disproportionate to the needs of even this extremely complicated case.”

Judge Deavers also concluded this with regard to the plaintiff’s proposed search terms:

“AMP’s request that Voith search its ESI collection without reference to the Project names by using as search terms including various employee and contractor names together with a list of common construction terms and the names of hydroelectric parts is overly inclusive and would yield confidential communications about other projects Voith performed for other customers. Voith employees work on and communicate regarding many customers at any one time. AMPs proposal to search terms limited to certain date ranges does not remedy the issue because those employees still would have sent and received communications about other projects during the times in which they were engaged in work related to AMP’s Projects. Similarly, AMP’s proposal to exclude the names of other customers’ project names with “AND NOT” phrases is unworkable because Voith cannot reasonably identify all the projects from around the world with which its employees were involved during the decade they were engaged in work for AMP on the Projects. Voith has demonstrated that using the terms proposed by AMP without connecting them to the names of the Projects would return thousands of documents that are not related to this litigation. The burden on Voith of running AMP’s proposed search terms connected to the names of individual employees and general construction terms outweighs the possibility that the searches would generate hits that are relevant to this case. Moreover, running the searches AMP proposes would impose on Voith the substantial and expensive burden of manually reviewing the ESI page by page to ensure that it does not disclose confidential and sensitive information of other customers. The request is therefore overly burdensome and not proportional to the needs of the case.”

So, what do you think?  Are these parties overreaching, do they need a course in search best practices or do they need a TAR approach?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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