July 2015 Ediscovery Case Summaries

Case Law Picture

Bad Faith Needed for Court to Rule in Favor of Spoliation Sanctions
Charvat v. Valente
2015 WL 4037776 (N.D. Ill. July 1, 2015).

Court Orders Defendant to Reveal Imprecise “Self-Collection” Methodology
Burd v. Ford Motors, Co.,
2015 WL 413915 (S.D. W. Va. July 8, 2015).

Court Follows Cost Shifting Analysis for Backup Tape Production
United States ex rel. Carter v. Bridgepoint Educ., Inc.,
305 F.R.D. 225 (S.D. Cal. 2015).

Court Conflicted Over Rule 26 in Light of Complex ESI Retrieval
ACI Worldwide Corp. v. Mastercard Tech., LLC.,
 2015 WL 4249760 (D. Neb. July 13, 2015).

Court Takes Middle Ground in Balancing ESI Production Costs
F & J Samame, Inc. v. Arco Iris Ice Cream,
2015 WL 4068575 (W.D. Tex. July 2, 2015).

Information Governance: Points from the Professionals


Information governance (IG) is becoming more and more critical to any organization’s success in controlling the sheer mass of data generated in the ordinary course of business.  However, determining the best ways to get information under control has many organizations at a standstill, with too many organizations only enacting IG practices after disaster strikes.

To highlight the importance of developing effective IG programs, the Information Governance Initiative (IGI) interviewed a number of IG practitioners in differing industries and recently published two reports.  Stories in Information Governance: The IGI 2015 Benchmarking Report and the accompanying document, Information Governance: Tips from the Trenches, compile valuable expert insight and practitioner tips to help any organization evaluate and cultivate an IG program. Across both resources, a couple central themes emerged:

Secure Support for Information Governance

Selling a program meant to protect against a vague, future threat is undoubtedly a challenge, but securing executive support and funding is essential for success. Using mock scenarios to test your program’s strengths and weaknesses, calculating the costs of inaction and consulting an outside expert can help win over a tough crowd and jumpstart an IG program or revive an old one.

Integrate Information Governance into the Entire Organization, not just a Single Department

By coordinating IG throughout the whole organization, end users will learn to think of information as belonging to the organization as whole, not just one department’s problem. For example, creating a senior IG role and developing an IG council of interdepartmental players can optimize the effectiveness of a program.  Further, exploring technology options that can automate as many processes as possible and eliminate end-user variability can make for a streamlined, cost-effective integration of IG policies and procedures into your organization.

Look for Smart Solutions to Challenging Information Governance Problems

Encountering roadblocks while starting and running an IG program is par for the course; don’t shy away from creative solutions. Proactive and creative planning gives you the chance to highlight the value of a strong IG program and garner support from key stakeholders. For example, leveraging versatile technology used to address one problem for other purposes can help stretch a limited budget. Rather than fixating on short-term hang ups, utilizing resources and finding a balance between completing current projects and achieving long-term goals will create a strong IG core at the heart of every project.

Make sure you take time to read these two valuable resources from IGI today: Stories in Information Governance: The IGI 2015 Benchmarking Report and Information Governance: Tips from the Trenches.

May Webinar UPDATE: Ediscovery Privilege

Summer time

As the temperature soars outside, stay cool with Kroll Ontrack as we delve once again into the depths of ediscovery privilege protection this July.

Corporate Counsel Article: Ediscovery Privilege Protection

As you may remember, Kroll Ontrack presented a webinar in May discussing methods of Protecting Privileged Materials in Ediscovery. Building upon what was discussed in that webinar, Kroll Ontrack’s  latest article, Mastering Privilege Protection During Ediscovery,  delves further into what it takes to maintain ediscovery privilege protection in this modern age. Authors included:

Jeff Schomig | WilmerHale | Attorney

Sheldon Noel | Kroll Ontrack | Account Executive

Topics in the Corporate Counsel article contained a deeper analysis of the topics discussed in the May webinar, including:

Embracing Predictive Coding for Ediscovery Privilege Review

To guarantee that predictive coding is employed, ensure that the technology is trained to recognize the characteristics of privileged or non-privileged documents to reduce the document volume for review while ensuring at the same that that the now smaller document set is fit for an efficient human review.

Integration of Privilege in Case Strategies

Early preparation is key to successfully ensure that privilege review tactics are integrated into case strategy. To ensure this, first reasonably ascertain all the necessary facts in your organization that relate to privilege and internal investigations prior to the review process. Understanding the legal communication flow and key litigation matters will help make the discovery process easier and more efficient in the long run.

Secondly, when dealing with large cases, the cost of organizing and producing a large privilege log must be considered. To mitigate these costs, some courts have permitted parties to forego individually logging documents and instead asserting claims categorically.

Considering Claw Backs to Remedy Inadvertent Disclosure

While the ultimate goal in ediscovery privilege protection is to avoid inadvertent disclosure, mistakes happen and privileged material may be disclosed to opposing parties. Understanding and properly utilizing FRCP Rule 502 to rectify the error can be a way to regain the improperly disclosed materials. However, Rule 502 is not guaranteed to reinstated privileged protection for disclosed material, so counsel should not rely on the rule as the all-purpose solution. In addition, the Rule 502 claw back can be written into an agreement between parties prior to production. This agreement can therefore be further enhanced through Rule 502(d) if the court enters the parties’ agreement as an order. Another alternative for counsels would be carefully document the review process and ensure that the personnel running the process are qualified to prevent improper disclosures.

For more information, be sure to check out our May article on Kroll Ontrack’s webinar, Power Up Your Privilege Review: Protecting Privileged Materials in Discovery.

June 2015 Ediscovery Case Summaries

Case Law Picture

Failure to Comply After Meet and Confer Results in Expensive Costs for Reproduction
Themis Bar Review, LLC v. Kaplan, Inc.,
WL 3397877 (S.D. Cal. May 26, 2015).

Court Finds Marginal Relevance Not Enough to Compel Continued Discovery
Miller v. York Risk Servs. Grp.,
2015 WL 3490031 (D. Ariz. June 3, 2015).

Court Affirms that Discovery Standard is Reasonableness, Not Perfection
Malone v. Kantner Ingredients, Inc.,
2015 WL 1470334 (D. Neb. Mar. 31, 2015).

Court Finds Good Faith Submission of Costs in Accordance with Rule 54      
Fitbug Ltd. v. Fitbit, Inc.,
2015 WL 2251257 (N.D. Cal. May 13, 2015).

Court Orders Cost Sharing in ESI Conversion
Hanwha Azdel, Inc. v. C&D Zodiac, Inc.,
2015 WL 1417058 (W.D. Va. Mar. 27, 2015).

Case Study: Investigators Uncover 18 Critical Emails Among Millions

Blog Relativity

300 gigabytes of data, 1 million documents, and a corporate fraud investigation …

As an ediscovery professional, you have probably found yourself in a scenario like this more than once.  Knowing what to do and having a good set of tools is half the battle, but effectively and efficiently finding a shred of valuable evidence in a mountain of data can be just as challenging as finding a needle in haystack.  Learn how one company, along with its counsel and ediscovery provider navigated this tricky terrain by reading this new Kroll Ontrack case study.

Finding the Needle in the Haystack

When a healthcare company discovered its intellectual property had been stolen, it faced the daunting task of reviewing a crippling amount of data with little or no guarantee that the evidence it needed would even be found.  In preparing for this daunting fraud investigation, it enlisted an AmLaw 100 law firm as well as Kroll investigators and Kroll Ontrack document review experts to take on the arduous task of analyzing and reviewing 300 gigabytes of data and over one million documents.  But what started as a monumental task of sifting through a myriad of data  was alleviated by leveraging  Kroll Ontrack’s Relativity platform, which includes a powerful Early Case Assessment workflow that can be customized to help review teams quickly organize, cull and prioritize docume prior to review.  In a matter of days, the investigators found their “needles” in the sizable haystack: amongst the one million documents reviewed, they found 18 emails to support the corporation’s claims and initiate a formal lawsuit.

Searching through the Straw

What can you do to sift through a seemingly endless amount of data? When you come upon your next substantial data haystack, keep these tips in mind:

  • Plan: Jumping into the data haystack headfirst may seem like a good way to quicken your search, but properly planning your investigation is the key to efficiency. An effective investigation requires strong communication, coordination, and goal setting to produce the best possible results.
  • Focus: You want to find those “needles” and quickly cull the straw from your data haystack to focus your search. Kroll Ontrack’s Relativity lets you to do just that by importing, analyzing, and organizing all potentially relevant data in its unified database, allowing you to easily identify the most important documents.
  • Assess: You may not find the “needle” you were looking for immediately, but assessing your findings and holding on to anything that stands out from the hay may save valuable time later. Keep the goals of the investigation in mind to ensure that critical or questionable data remains in the pool as the investigation progresses.

Pairing strong preparation with the powerful versatility of Kroll Ontrack’s unique technology and seasoned professionals enables investigation teams to locate valuable evidence in the most formidable of data haystacks.  To learn more about how this healthcare company managed this data nightmare with Kroll Ontrack’s unique technology and services, check out the full case study today.

#throwbackthursday: Webinar Recaps for May and June


Happy Thursday! Have you posted a vintage and/or embarrassing photo of yourself for #throwbackthursday? “With the massive popularity of this hashtag on Instagram and Facebook, you might be feeling left out if you don’t partake in #tbt.”

Kroll Ontrack is joining the #tbt craze, with a throwback to a couple recent webinars:

If you missed one of these learning opportunities, take a few minutes to read the information below and listen to the recordings. Have a great #tbt!

Bust These 4 Myths on Your Next Document Review

Conducting an effective and efficient legal document review requires a hybrid of rocket science, brain chemistry and hot coffee. With ediscovery technology and best practices constantly evolving, if your document review practices and cybersecurity procedures haven’t changed in recent years, you are likely wasting time and money for your organization and/or your client. Listen as two experienced panelists bust four common document review myths.


Kara Kirkeby | Manager, Document Review Services | Kroll Ontrack

Beth Rauker| Principal Ediscovery Specialist | Medtronic

Cybersecurity: Global Implications on Ediscovery, Litigation & Regulatory Compliance

It is prudent to take every effort to vet organizational, law firm and vendor data security policies and make sure they are being proactive—before it is too late. Asking intelligent questions of the organizations, law firms and service providers you work with can save money and help your organization avoid being the next victim of a large-scale, highly publicized data breach.


Sheila FitzPatrick | Worldwide Legal Data Governance & Data Privacy Counsel | NetApp, Inc.

David Bateman | Partner | K&L Gates

Thomas Barce | Director, Consulting Services | Kroll Ontrack

Document Preservation: Know When to Hold ‘Em (and When to Fold ‘Em)

Poker Image for Blog

The cut-throat, high stakes environment of a nail-biting poker tournament is oddly similar to the world of document preservation in litigation, investigations and regulatory events. Though the former tends to take place in a smoke-filled, lowly lit room, and the latter on computers (with less smoke, but perhaps the same amount of nail-biting), both pastimes involve the same motto. In litigation and poker, a savvy professional must know when to hold ‘em and when to fold ‘em.

Two seasoned ediscovery professionals, Cathleen Peterson from Kroll Ontrack and Brian Corbin from JP Morgan Chase, recently collaborated to publish an informative article in the ACC Docket, Document Preservation: Know When to Hold ‘Em. As continuing advances in technology have caused a massive shift to digital document retention and preservation, legal departments need to create clear policies when it comes to document preservation in order to keep abreast of (or ahead of) the curve.

Tip #1: Be Proactive

The duty to initiate preservation efforts arises when a litigation or regulatory event is reasonably foreseeable. For many corporations, this may mean that legal departments must issue legal holds quite frequently. Being proactive in issuing legal holds is necessary, as courts have little patience for preservation corner-cutting and are now more likely to impose costly alternatives or sanctions on parties that lose or alter information as a result of less sophisticated, or remissive, legal hold policies.

Tip #2: Know When to Take Action, and When Not to Take Action

ESI has a transient nature, so waiting until litigation has commenced can result in the inadvertent destruction of relevant emails or other documents. Recovery of these lost documents can be extremely costly or impossible. Thus, deciding when to issue an initial legal hold or when to refresh an existing hold should be done with the entire process in mind.

Tip #3: Leave a Good Paper Trail

Having a well-documented paper trail is the best way to avoid the pitfalls of a potential spoliation charge. With proper documentation, even if the relevant information is lost, documentation that shows right actions were taken at the right time could serve as a shield to prevent the imposition of sanctions.

Tip #4: Follow Up and Be a Team Player

Effective counsels take affirmative steps to periodically remind relevant parties of the ongoing nature of legal holds, and works with the IT department to ensure that regularly scheduled data purges do not occur. Legal teams must work with IT to ensure that IT understands that the duty to preserve extends beyond the length of employment, meaning that the company laptops or computers should not be wiped when a relevant employee leaves the company.

Tip #5: Repeat, Repeat, Repeat. Stop.

A key element of any successful legal hold and retention policy is its repeatability and consistency of implementation. Repeatability and consistency can clear confusion about the legal hold policies and automation of data, making compliance much easier to follow in the long run. However, just as legal holds come from a reasonable foreseeability of litigation, holds can end with when litigation is brought to a close (including expiration of an appeals period, if applicable), or when the  reasonably foreseeable threat of litigation has gone away. Failure to release holds and apply normal retention policies in a timely manner is a risky proposition as the retained data remains in the organization’s custody and control, therefore subject to discovery in future matters.

The Takeaway  

Companies need to know that technology has evolved to a point where legal departments of any size can handle legal holds of any scope, so long as steps are taken to communicate with other key players in the process, including relevant custodians, IT departments, and executive teams. If the proper steps are not taken, or procedures are not followed according to the documented plan, litigation can result in high costs and sanctions.

The next time you face a legal hold, think of yourself as the consummate poker player and remember, “if you wanna play the game…you gotta play it right.” With these tips, you’ll be sure to play the game right to the end. Continue reading →

SCOTUS Approves Proposed FRCP Amendments

Changes to the FRCP on the horizon following SCOTUS approval of the proposed  amendments.

On April 29, 2015 amendments to the Federal Rules of Civil Procedure (FRCP) took another step forward in the process. In a letter to U.S. Senate and House of Representatives leadership, Chief Justice John Roberts submitted the proposed amendments to the FRCP for final congressional approval. Chief Justice Roberts stated that the amendments “[H]ave been adopted by the Supreme Court of the United States,” rendering them effective December 1, 2015 absent any legislation to reject or modify the rules. You can find a copy of the Supreme Court’s submission to Congress here.

FRCP Amendments: A Look Back

As I blogged previously in a multi-part series, these amendments have travelled a long and winding road spanning multiple years. After being approved by the Standing Committee in May 2014 and the Judicial Conference in September 2014, the Supreme Court’s blessing was the next major hurdle.

FRCP Amendments: Impacts on Ediscovery

Unless modified by an act of Congress, legal professionals should expect several new civil procedure rules coming soon, with changes to Rule 37(e) likely driving the most impact on ediscovery.

The amendments to FRCP 37(e) seek to impose a uniform standard relating to the remedies available by a court when ESI is not properly preserved.  Rule 37(e) is applicable when three criteria are met:

  1. ESI is lost that “should have been preserved in the anticipation or conduct of litigation,”
  2. Because of a failure to take “reasonable steps,” and
  3. The loss cannot be remedied by “additional discovery” designed to replace or restore the ESI.

After this three part test is established, then a court—finding prejudice to the impacted party—can determine a remedy “no greater than necessary to cure the prejudice.” Only if the court finds intent to destroy ESI do the following grave remedies apply: adverse inference, jury instruction or dismissal.

In addition to these changes, other FRCP amendments emphasize the importance of cooperation, proportionality, and reasonableness in discovery. Make sure you subscribe to “Everything Ediscovery” by Kroll Ontrack for future posts about the new FRCP rules as December 1, 2015 draws near.

May 2015 Ediscovery Case Summaries

ediscovery case studies

Court Untangles Dispute over Production Format, Orders Reasonably Usable Form
Wilson v. Conair Corp.
2015 WL 1994270 (E.D. Cal. Apr. 30, 2015).

Court Allows Deposition of Computer Forensics Specialist to Aid in Discovery
Procaps S.A. v. Patheon Inc.
, 2015 WL 1880346 (S.D. Fla. Apr. 24, 2015).

Court Requires the Calculation of Damages to Proportionally Resolve Discovery Dispute
Corning Optical Communs. Wireless v. Solid, Inc.,
2015 WL 1726749 (N.D. Cal. April 14, 2015).

Appellate Court Rejects Reliance on Document Retention Policy; Justifies Harsh Sanctions
Crews v. Avco Corp.,
2015 WL 1541179 (Wash. Ct. App.  Apr. 6, 2015).

Court Compels Production of Metadata
Younes v. 7-Eleven, Inc.,
2015 WL 126313 (D.N.J. Mar. 18, 2015).

[Webinar] In Case You Missed It: Protecting Privilege in Ediscovery


With the growth of information subject to privilege review and the increased role of technology, protecting privileged documents is one of the most critical issues for lawyers and litigation teams. While technology has made document review easier than ever, effectively incorporating privilege considerations into the broader case strategy remains difficult. Knowing how to approach privilege review from both a strategic and tactical perspective is incredibly important and critical to ensuring that ediscovery costs, time, and risks are kept to a minimum.

Kroll Ontrack recently presented a webinar, Power-Up Your Privilege Review:
Protecting Privileged Materials in Ediscovery
, addressing how to best incorporate privilege into your case strategy. Panelists included:

These experts discussed the following intricacies of document review, and how one can—and should—make the most of the Federal Rules and new technologies to perform effective and consistent privilege review.

Embrace Predictive Coding for Privilege Review

Predictive coding can be a litigant’s best friend during a privilege review. With the proper case planning and preparation, predictive coding can help you track down documents that require manual review. Further, predictive coding may even be used to locate and isolate potentially privileged documents in any language. Preventing the disclosure of privilege-protected documents is your first line of defense, and predictive coding is a powerful tool that will help you keep the data that you need to keep.

Consider Clawbacks to Remedy Inadvertent Disclosure

Litigants often fail to fully cooperate in the discovery process, even when cooperation would benefit both sides of a dispute. This is especially true when it comes to privilege review. Far too often, litigants overlook Rule 502(d)—which allows a court to enter a clawback agreement as an order.

Integrate Privilege in Your Case Strategy

In any matter, look at the bigger picture and incorporate strategic considerations into privilege discussions. Litigation teams frequently see the privilege log as a secondary exercise in the discovery process, rather than proactively addressing how they will handle privilege documents. To better prepare yourself for the inevitable privilege issue, download the webinar today!