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eDiscovery

eDiscovery Trends: Google “Vaults” Into eDiscovery Preservation
Yesterday, Google announced the launch of an eDiscovery tool named Vault for its Google Apps business customers.  Google Apps Vault is an add-on which preserves electronically stored information (ESI), including Gmail, chats and other correspondence to help users meet preservation obligations for litigation, regulation and compliance laws.

Jack Halprin, Head of eDiscovery at Google posted the following to the Google blog yesterday:

“Today we’re announcing the availability of Google Apps Vault (Vault) for Google Apps for Business customers. Vault is an easy-to-use and cost-effective solution for managing information critical to your business and preserving important data. It can reduce the costs of litigation, regulatory investigation and compliance actions.

Businesses of all sizes need to be prepared for the unexpected. In today’s environment, using Vault to manage, archive and preserve your data can help protect your business. Litigation costs can really take a toll on a business when minor lawsuits can run up to many thousands of dollars, and larger lawsuits can cost even more. Significant litigation costs come from having to search and find relevant data, which is also known as electronic discovery (eDiscovery).

E-discovery can be part of virtually any litigation and requires you to search, find and preserve your electronic information such as email. Vault helps protect your business with easy-to-use search so you can quickly find and preserve data to respond to unexpected customer claims, lawsuits or investigations. With an instant-on functionality and availability of your data a few clicks away, Vault provides access to all of your Gmail and on-the-record chats and can provide significant savings to your business over the traditional costs of litigation and eDiscovery.

Additionally, Vault gives Google Apps customers the extended management and information governance capabilities to proactively archive, retain and preserve Gmail and on-the-record chats. With the ability to search and manage data based on terms, dates, senders, recipients and labels, Vault helps you find the information you need, when you need it. Vault gives management, IT, legal and compliance users a systemized, repeatable and defensible platform that will reduce the costs and risks of doing business. With just a few clicks, the business can access a service designed for security and providing auditable access to critical information.

Vault is built on the same modern, 100% web-based architecture as Google Apps. Unlike traditional solutions, it does not require a complex and costly IT environment, and can be deployed in a matter of minutes. Vault brings the security, ease-of-use and reliability of Google Apps to information governance. It can help meet the sophisticated requirements of large organizations and makes these advanced capabilities available to business of all sizes.”

Vault is available to Google Apps customers for $5 per user per month.

So, what do you think?  Do you think that Google has the financial resources to make a splash with Vault?  Just kidding.  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Trends: Three Years Later, “Deleted” Facebook Photos Still Online
So, that’s why they call it “Facebook”.  Because the “faces” never leave!  Ba-dum-bah!  Hey, I’m in town all week!

Thanks to the Technologist for this article, by way of Ars Technica.  If you have deleted any of your photos from Facebook in the past three years, you may be surprised to find that they are probably still on the company’s servers.

Facebook is still trying to provide timely deletion of photos from its servers nearly three years after Ars Technica first raised the issue. Admitting that its older systems for storing uploaded content “did not always delete images from content delivery networks in a reasonable period of time even though they were immediately removed from the site,” Facebook recently stated that it’s currently completing a newer system that will effectively delete photos within 45 days of the removal request. Until then, photos that users thought they “deleted” from the social network months or even years ago remain accessible via direct link.

Facebook has addressed this issue in its Statement of Rights and Responsibilities, as follows: “when you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).”

Not available to others unless they know the direct link to that content, apparently.

As author (from Ars Technica) Jacqui Cheng notes, “There were plenty of stories in between as well, and panicked Facebook users continue to e-mail me, asking if we have heard of any new way to ensure that their deleted photos are, well, deleted. For example, one reader linked me to a photo that a friend of his had posted of his toddler crawling naked on the lawn. He asked his friend to take it down for obvious reasons, and so the friend did—in May of 2008. As of this writing in 2012, I have personally confirmed that the photo is still online, as are several others that readers linked me to that were deleted at various points in 2009 and 2010.”  However, she noted that Facebook did delete her pictures after she did a story in 2010.

Needless to say, as discovery requests for Facebook content continue to increase (such as cases here, here, here, here and here illustrate), this could be discoverable ESI as long as that information is out there.  For attorneys that are contemplating requesting data from Facebook, it may be important to familiarize themselves with Facebook’s Law Enforcement page on how to request that information.  Apparently, just because the opposing party can no longer access that information doesn’t mean it’s not still available.

So, what do you think?  Are you surprised at how Facebook has been handling deletions?  Are you worried that some of your deleted data might still be out there?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Trends: One Third of Surveyed Attorneys Plans to Increase eDiscovery Spending
A new survey from Robert Half Legal eDiscovery Services finds that spending by organizations on electronic discovery-related services grew in 2011 and should continue to increase through 2013.  According to the survey of 350 attorneys in large law firms and corporations in the US and Canada, 23 percent of attorneys surveyed said their law firms and corporate legal departments increased eDiscovery expenditures in the last year, with 71 percent indicating that spending remained the same and just 2 percent indicating that they reduced spending.  For 2012 and 2013, nearly one-third (33 percent) of attorneys expected to increase spending on eDiscovery, while 56 percent expect no change in spending and 4 percent expect to decrease eDiscovery spending.

Other interesting findings from the survey include:

  • 27 percent of attorneys surveyed indicated that they don’t currently have a standard operating procedure in place in the event they receive an unexpected request for discovery;
  • 15 percent of survey participants are “not at all confident” that their organization has an eDiscovery plan in place to respond to a request for cloud-based information in response to a regulatory request or litigation;
  • 22 percent of attorneys surveyed are “not at all confident” that their organization has an eDiscovery plan in place to respond to a request for information from social media sites in response to a regulatory request or litigation;
  • Survey respondents indicated that their organization has received an average of 16 external requests for electronically stored information (ESI) in the last three years;
  • 12 percent of attorneys surveyed stated that issues or problems with collecting or reviewing ESI negatively affected a case or ruling for their law firm or company in the last three years;
  • 22 percent of responding corporate lawyers said their organization increased its handling of eDiscovery projects in house within the last year.

This study, and the IBISWorld study from last fall, point to continued growth in eDiscovery activities and spending.  It seems apparent that, as data within the world continues to double every 1.5 to 2 years, many law firms and corporations are having to “ramp up” to meet their eDiscovery obligations.

So, what do you think?  Do these results surprise you?  If so, are they higher or lower than you expected?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Best Practices: Issuing the Hold is Just the Beginning

Yesterday, we discussed identifying custodians, preparing a written litigation hold, issuing the hold and tracking responses.  Today, we’ll discuss interviewing hold notice recipients, follow up on notices, releasing holds when the obligation to preserve is removed and tracking all holds within an organization.  Here are the rest of the best practices for implementing a litigation hold.

Interviewing Hold Notice Recipients: Depending on the case, follow-up interviews (with at least the key custodians) are generally accepted as a best practice and may be necessary to ensure defensibility of the notice.  The point of these interviews is to repeat the duty to preserve, provide a detailed explanation of the requirements of the hold, answer the recipient’s questions (if any), and confirm that the recipient understands and agrees to adhere to the notice. You should keep written records of each of these interviews and document the reasoning for determining which individuals to interview.

Follow-Up on Hold Notices: For a litigation hold plan to be successful and defensible, it needs to include periodic follow-up reminders to recipients of the notices to inform them that the data in question remains under hold until the case concludes. Follow-up reminders could simply be a retransmission of the original notice or they could be a summary of all of the notices the individual has received, if there are multiple cases with holds for that individual. There is no specific requirement on how often the reminders should be sent, but it’s best to send them at least quarterly.  For some cases, it may be necessary to send them monthly.

Release the Hold: Not to be confused with “release the hounds”, it is just as important to inform people when the duty to preserve the data expires (typically, when the case is completed) as it is to notify them when the duty to preserve begins.  Releasing the hold is key to ensure that information doesn’t continue to be preserved outside of the organization’s document retention policies – if it is, it may then become subject to litigation holds in other litigations unnecessarily.  Releasing the hold also helps keep custodians from being overwhelmed with multiple retention notices, which could cause them to take the notices less seriously.  However, the release notification should be clear with regard to the fact that data subject to hold in another matter should continue to be preserved to meet discovery obligations in that matter.

Hold Tracking System: It’s important to have a reliable “system” for tracking litigation holds across all matters within the organization. Depending on your needs, that could be a customized application or a simple database or spreadsheet to track the information.  You should keep historical tracking data even for completed matters as that information can be useful in guiding hold issuance on new matters (by helping to identify the correct custodians for new matters that are factually similar or related to current closed or open matters).  At a minimum, a tracking system should:

  • Track responses from individual custodians and identify those who have not yet responded,
  • Track periodic reminder notices and release notices,
  • Provide ability to report a list of people with a duty to preserve for a specific matter as well as all matters for which a person is under retention.

So, what do you think?  Do you have a solid “hold” on your hold process?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Best Practices: Hold It Right There!
When we reviewed key case decisions from last year related to eDiscovery, the most case law decisions were those related to sanctions and spoliation issues.  Most of the spoliation sanctions were due to untimely or inadequate preservation of the data for litigation.  As noted in Zubulake, Judge Shira Sheindlin ruled that parties in litigation have an obligation to preserve potentially relevant data as soon as there is a reasonable expectation that data may be relevant to future litigation.  However, even if the party reacts in a timely manner to take steps to preserve data through a litigation hold, but executes those steps poorly, data can be lost and sanctions can occur.  Here are some best practices for implementing a litigation hold.

The most effective litigation hold plans are created before actual litigation arises and applied consistently across all matters. While cases and jurisdictions vary and there are not many hard and fast rules on implementing litigation holds, there are generally accepted best practices for implementing holds.  Implementation of a litigation hold generally includes each of the steps identified below:

Identify Custodians: As we learned in Voom HD Holdings v. EchoStar Satellite LLC, 600292/08, It’s important to completely identify all potential custodians and suspend any automatic deletion policies that might result in deletion of data subject to litigation.  In this case, EchoStar put a litigation hold in place, instructing employees to save anything that they deemed potentially relevant to the litigation, but did not extend this hold to stopping automatic deletion of eMails from EchoStar’s computers until four months later in June 2008.  As a result of their untimely and incomplete hold, EchoStar was given an adverse inference sanction (their second one!).

Custodians can be individuals or non-custodial (i.e., not held by a specific individual) sources such as IT and records management departments.  To determine a complete list of custodians, it’s generally best to conduct interviews of people identified as key players for the case, asking them to identify other individuals who are likely to have potentially relevant data in their possession.

Prepare Written Hold Notice: Hold notices should be in writing, and should typically be written in a standard format.  They should identify all types of data to be preserved and for what relevant period.  Sometimes, hold notices are customized depending on the types of custodians receiving them (e.g., IT department may receive a specific notice to suspend tape destruction or disable auto-deletion of emails).

Distribute Hold Notice: It is important to distribute the notice using a communication mechanism that is reliable and verifiable. Typically, this is via email. It’s rare to use paper notices anymore as they are more difficult to track. Distribution should occur only to the selected and specific individuals likely to have potentially relevant information, usually not company-wide, as not everyone will understand the parameters of the hold.  Notices with overly broad distributions have, in some cases, been deemed inadequate by courts.

Track Responses: It is advisable to require recipients of the litigation hold notice to confirm their receipt and understanding of the notice via a method that can be tracked.  Receipt and read notifications or voting buttons in emails could be used for this purpose, but they may not always be acceptable, since there is no guarantee that the recipient actually read or understood the notice.  Perhaps a better approach is to send each recipient an attached form that enables them to acknowledge each instruction within the hold notice to confirm a more complete understanding – these forms can even be set up as enterable PDF forms that even enable digital signatures so that no printing is required.

Tomorrow, we’ll discuss follow up on notices, releasing holds when the obligation to preserve is removed and tracking all holds within an organization.  Hasta la vista, baby!

So, what do you think?  Do you have a solid “hold” on your hold process?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Daily Is Eighteen! (Months Old, That Is)
Eighteen months ago yesterday, eDiscovery Daily was launched.  A lot has happened in the industry in eighteen months.  We thought we might be crazy to commit to a daily blog each business day.  We may be crazy indeed, but we still haven’t missed a business day yet.

The eDiscovery industry has grown quite a bit over the past eighteen months and is expected to continue to do so.   So, there has not been a shortage of topics to address; instead, the challenge has been selecting which topics to address.

Thanks for noticing us!  We’ve more than doubled our readership since the first six month period, had two of our biggest “hit count” days in the last month and have more than quintupled our subscriber base since those first six months!  We appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Atkinson-Baker (depo.com), Litigation Support Technology & News, Next Generation eDiscovery Law & Tech Blog, InfoGovernance Engagement Area, Justia Blawg Search, Learn About E-Discovery, Ride the Lightning, Litigation Support Blog.com, ABA Journal, Law.com and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As we’ve done in the past, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

eDiscovery Trends: Is Email Still the Most Common Form of Requested ESI?

eDiscovery Trends: Sedona Conference Provides Guidance for Judges

eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth

eDiscovery Law: Model Order Proposes to Limit eDiscovery in Patent Cases

eDiscovery Case Law: Court Rules ‘Circumstantial Evidence’ Must Support Authorship of Text Messages for Admissibility

eDiscovery Best Practices: Cluster Documents for More Effective Review

eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?

eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone

eDiscovery Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win

eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases

eDiscovery Case Law: Court Grants Adverse Inference Sanctions Against BOTH Sides

eDiscovery Trends: ARMA International and EDRM Jointly Release Information Governance White Paper

eDiscovery Trends: The Sedona Conference International Principles

eDiscovery Trends: Sampling within eDiscovery Software

eDiscovery Trends: Small Cases Need Love Too!

eDiscovery Case Law: Court Rules Exact Search Terms Are Limited

eDiscovery Trends: DOJ Criminal Attorneys Now Have Their Own eDiscovery Protocols

eDiscovery Best Practices: Perspective on the Amount of Data Contained in 1 Gigabyte

eDiscovery Case Law: Computer Assisted Review Approved by Judge Peck in New York Case

eDiscovery Case Law: Not So Fast on Computer Assisted Review

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

eDiscovery Case Law: Not So Fast On eDiscovery Cost Reimbursement
Yesterday, we noted a potential reversal in the case approving computer-assisted review of electronically stored information (“ESI”) in the Southern District of New York.  Today, we look at another eDiscovery ruling where a significant reduction in award amount was ruled.

One of the emerging trends for 2011 was the growing number of cases where the prevailing party was awarded reimbursement of eDiscovery costs, including this case and this case.  Another case of eDiscovery cost reimbursement reported in this blog was Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp., No. 2:07-cv-1294, 2011 WL 1748620 (W.D. Pa. May 6, 2011), where U.S. District Judge Terrence F. McVerry in Pittsburgh ruled that the winning defendants in an antitrust case were entitled to reimbursement of more than $367,000 in eDiscovery costs.

The plaintiff had argued previously that the costs should be disallowed because “electronic document collection, hard drive imaging and indexing and searching, commonly referred to as ‘eDiscovery charges,’ are not enumerated under Section 1920(4), and thus are not properly deemed recoverable costs.”  But Judge McVerry found that Congress, in the Judicial Administration and Technical Amendments Act of 2008, modified the wording of Section 1920(4), changing the phrase “fees for exemplifications and copies of papers” to read “fees for exemplification and the costs of making copies of any materials.”  Since that amendment, Judge McVerry said, “no court has categorically excluded eDiscovery costs from allowable costs.”

Given the extent of the defendant’s eDiscovery activities, including copying nearly 500 gigabytes of data in response to over 400 search terms and creation of a litigation database, the court awarded $367,000 of the $389,000 eDiscovery costs requested by the defendants.

Naturally, the plaintiffs appealed that ruling to the Third Circuit Court of Appeals.

In a ruling that will undoubtedly not be popular with corporate defendants, the Third Circuit ruled that only an isolated portion of eDiscovery costs was taxable. As noted by the appeals court:

“The decisions that allow taxation of all, or essentially all, electronic discovery consultant charges, such as the District Court‘s ruling in this case, are untethered from the statutory mooring. Section 1920(4) does not state that all steps that lead up to the production of copies of materials are taxable. It does not authorize taxation merely because today‘s technology requires technical expertise not ordinarily possessed by the typical legal professional. It does not say that activities that encourage cost savings may be taxed.”

As a result, the appeals court significantly reduced the eDiscovery costs that the plaintiffs would have owed Hoosier and DMS under the lower court’s decision:

“We conclude that of the numerous services the vendors performed, only the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD involved copying, and that the costs attributable to only those activities are recoverable under § 1920(4)‘s allowance for the costs of making copies of any materials. Those costs total $30,370.42. We find that none of the charges imposed by DMS‘s vendor are taxable, and that the award in favor of Hoosier should be reduced by $95,210.13, the difference between the  electronic discovery vendors‘ charges awarded by the District Court ($125,580.55) and the charges of Hoosier‘s electronic discovery vendors we find taxable ($30,370.42).” {emphasis added}

So, what do you think?  Do you agree with the narrow ruling of taxable eDiscovery costs or do you think the original, more expansive ruling was correct?  Will this lead to more cases settling?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: Not So Fast on Computer Assisted Review
A few weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012), Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion approving of the use of computer-assisted review of electronically stored information (“ESI”) for this case, making it likely the first case to recognize that “computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.”  However, last Tuesday (March 13), District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional briefing on their objections to the ruling.

On February 8, the parties attended a hearing to discuss their discovery protocol, and in particular the use of computer-assisted review (also referenced as “predictive coding”).  At the hearing, Judge Peck issued a ruling, approving the use of computer-assisted review, and instructed the parties to submit a draft protocol for court approval.  Judge Peck approved the proposed protocol on February 22 that had been submitted, over the plaintiffs’ objections.  On February 24, Judge Peck issued his written opinion detailing his rulings from the February 8th hearing.

On February 22 (the same day the protocol was approved, but before Judge Peck’s written opinion), the plaintiffs filed their 24 page objections to the February 8th discovery rulings, indicating their argument that the “Magistrate’s decision to adopt MSL’s predictive coding protocol is clearly erroneous and contrary to law.”  The plaintiffs specifically argued that “sanctioning the use of predictive coding in this employment discrimination case violates Federal Rule of Civil Procedure 26” and also argued that the court’s adoption of a “novel discovery methodology” without “supporting evidence” or “standards for assessing reliability” was “clearly erroneous and contrary to law”.  On March 7, the defendant filed its opposition to plaintiffs’ objections.

Then, on March 9, the plaintiffs submitted a letter to District Judge Carter, requesting an opportunity to “file a ten-page reply brief” to the defendant’s response.  In the letter, the plaintiffs argued that Judge Peck’s written ruling, issued two days after their objections were filed, “expanded on the reasoning for the rulings he had made from the bench,” including relying on “a number of articles that were not addressed in the parties’ submissions” and making observations about plaintiffs’ objections.  As a result, the plaintiffs requested the opportunity to “squarely address Magistrate Judge Peck’s complete rulings.”  In addition, the plaintiffs argued that allowing their reply would not result in prejudice where the defendant had “the benefit” of filing its opposition to plaintiffs’ objections after the written ruling was issued and thus had the opportunity to consider Magistrate Judge Peck’s analysis when crafting their response.

Which brings us to last Tuesday (March 13), Judge Carter granted plaintiffs’ request and ordered their reply be submitted by March 19 (that’s today!).  Then, we’ll see what happens next.

So, what do you think?  Do the plaintiff’s objections have merit?  If Judge Carter throws out predictive coding, will there be hand wringing and wailing from the predictive coding vendors?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: The Zubulake Rules of Civil Procedure
As noted in Law Technology News (N.Y. Appellate Division Continues to Press ‘Zubulake’ EDD Standard) recently, the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, 220 FRD 212 in two case rulings within a month’s time.

In Voom HD Holdings v. EchoStar Satellite LLC, 600292/08, the decision, written by Justice Sallie Manzanet-Daniels, was the first by a New York state appellate court to apply the standard for spoliation of electronic evidence applied by Judge Shira Scheindlin in Zubulake in 2003.  As defined by Judge Scheindlin, the Zubulake standard asserts that “once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”

The case relates to a 2005 contract dispute between EchoStar and Cablevision subsidiary Voom HD Holdings, within which Voom agreed to provide EchoStar rights to broadcast Voom’s programming.  Once the case was filed by Voom in February 2008, EchoStar put a litigation hold in place, instructing employees to save anything that they deemed potentially relevant to the litigation, but did not extend this hold to stopping automatic deletion of eMails from EchoStar’s computers until four months later in June 2008.

Voom moved for spoliation sanctions against EchoStar for failing to preserve its eMails and Manhattan Supreme Court Justice Richard Lowe granted the motion, citing Zubulake, finding that EchoStar should have put in place a litigation hold (including a stop to automatic deletion of e-mails) in June 2007, when its corporate counsel sent Voom a letter containing a notice of breach, a demand and an explicit reservation of rights (i.e., reasonably anticipated litigation).  Therefore, EchoStar was given an adverse inference sanction (they had also received a similar sanction in 2005 in Broccoli v. EchoStar Communications Corp., 229 FRD 506).

EchoStar appealed and requested the appellate court to adopt a rule that a company must preserve documents when litigation is pending or when it has “notice of a specific claim.”  However, that argument was rejected by The First Department, which ruled that “EchoStar and amicus’s approach would encourage parties who actually anticipate litigation, but do not yet have notice of a ‘specific claim’ to destroy their documents with impunity” and upheld the sanction.

In U.S. Bank National Association v. GreenPoint Mortgage Funding Inc., 600352/09, the First Department held that the producing party should bear the initial costs of “searching for, retrieving and producing discovery,” but that lower courts may permit cost shifting based on the factors set forth in Zubulake.  The case was filed by U.S. Bank, NA (indenture trustee for the insurers and holders of the mortgage-backed notes issued by GreenPoint Mortgage Funding Inc., a now defunct mortgage lender specializing in “no-doc” and “low-doc” loans) against GreenPoint.

U.S. Bank served its first document production request on GreenPoint along with its original complaint; however, GreenPoint did not produce the requested documents.  Instead, they moved for a protective order arguing that U.S. Bank should pay the costs associated with its document requests including the cost of attorney review time for confidentiality and privilege assertions.  The court upheld GreenPoint’s argument that the “party seeking discovery bears the costs incurred in its production” but rejected GreenPoint’s request for U.S. Bank to also bear the attorney costs for privilege and confidentiality determinations.

Upon appeal, the First Department reversed the lower court’s conclusion that the requesting party bear the cost of production, finding that, per the Federal Rules of Civil Procedure and Zubulake, the producing party should “bear the cost of the searching for, retrieving, and producing documents, including electronically stored information.”  In the February 28 ruling, Justice Rolando Acosta wrote that the court was “persuaded that Zubulake should be the rule in this Department.”  However, the court also ruled that the lower court could order cost shifting under CPLR Article 31 between the parties by considering the seven factors set forth in Zubulake.

What are those seven factors?  Tune in tomorrow, when we will provide a refresher to the Zubulake case and its various opinions!

So, what do you think?  Is the Zubulake standard appropriate for these two cases?  Is it appropriate for cases in general?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: Plaintiff Not Compelled To Turn Over Facebook Login Information
In Davids v. Novartis Pharm. Corp., No. CV06-0431, (E.D.N.Y. February 24, 2012), the Eastern District of New York ruled against the defendant on whether the plaintiff in her claim against a pharmaceutical company could be compelled to turn over her Facebook account’s login username and password.

Plaintiff claimed ongoing suffering from osteonecrosis of the jaw (a severe bone disease that affects the maxilla and the mandible) against the defendant. Defendant served Plaintiff with its Second Set of Requests for Production of Documents, which requested Plaintiff’s log-in information to all of her social-networking websites and a release allowing Defendant to obtain documents directly from those websites so that Defendant could inspect all documents that relate to her claim.  In responding to the request, the Plaintiff only produced materials that were available to all Facebook users — not items hidden through Facebook’s privacy settings — claiming that the request was overbroad and a fishing expedition. As a result, the Defendant filed a motion to compel the Plaintiff to turn over her login information, including login for Facebook.

Why did the Defendant request the additional access?  As noted in the transcript:

“Defendant argues that Plaintiff’s log-in information is discoverable because statements or pictures on her Facebook page relate directly to her claim of ongoing suffering from osteonecrosis of the jaw. Defendant’s claim is predicated on Ms. Davids’ profile picture, in which Defendant claims she is smiling. Defendant did not inquire about Ms. Davids’ social networking activity at her deposition.”

In the process of determining whether the Defendant could compel such discovery, Magistrate Judge William Wall first noted that “[n]o cases in the Second Circuit or the Eastern District of New York have directly addressed this issue”.  The Defendant based its argument on two cases where access to social media information was granted: Largent v. Reed, 2011 WL 5632688, (Pa. C.P. Franklin Co. Nov. 8, 2011) and Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010).  In both cases, “publically available content on the individual plaintiffs’ public Facebook profiles provided sufficient relevant information for the courts to infer that further discovery was necessary”; however, as the court noted in this case, “no such evidence exists”.  Therefore, the court ruled as follows:

“Defendant’s argument that Plaintiff smiling in her profile picture on Facebook satisfies its burden in this motion to compel is without merit. Even if Plaintiff is smiling in her profile picture, which is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff’s account.”

As a result, the court denied the defendant’s motion to compel.

So, what do you think?  Was the lack of publically available content sufficient justification for not granting the motion to compel?  Or should this case have been handled in the same manner as Largent and Romano?  Please share any comments you might have or if you’d like to know more about a particular topic.

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