October 2014 Ediscovery Case Summaries

ediscovery case studies

Court Denies Motion for Proportionality, Suggests Other Methods to Save Time and Money
United States v. Univ. of Nebraska at Kearney, 2014 WL 4215381 (D. Neb. Aug. 25, 2014).

Defendants’ Failure to Impose Litigation Hold Leads to Sanctions
Vicente v. City of Prescott, 2014 WL 3894131 (D. Ariz. Aug. 8, 2014).

Plaintiff Does Not Offer Proportional Production Remedy, Court Denies “Discovery on Discovery”
Freedman v. Weatherford Int’l, 2014 WL 4547039 (S.D. N.Y. Sept. 12, 2014).

Prevailing Party Awarded Taxable Costs from Production to Opposing Party
Apple Inc. v. Samsung, 2014 WL 4745933 (N.D. Cal. Sept. 19, 2014).

Defendant’s Gross Negligence Leads to Adverse Inference Instruction
Riley v. Marriott Int’l, 2014 WL 4794657 (W.D. N.Y. Sept. 25, 2014).

The Decade of Discovery: Coming Soon to a City Near You

decade of discovery

Traversing the infamous Hollywood Walk of Fame elicits visions of glitz and glamour, a street afire with opening nights, leading ladies and leading men, iconic directors and prolific producers, and films that place marked key moments in our lives. I, myself, endured the 80’s in Hollywood as a session musician and experienced firsthand the excitement of Hollywood and certainly have my share of stories to tell (or not to tell). In my wildest of dreams, I never would have imagined ediscovery coming to the big screen.

2014’s Best Ediscovery Movie

So, you can imagine my delight earlier this year when I heard the news that ediscovery-guru-turned-filmmaker, Joe Looby, directed a documentary about the growth and evolution of the ediscovery industry. Federal judges, computer scientists and ediscovery icons on a journey to search and discover White House emails. Civil justice issues on the very edge of the electronic frontier. Technology’s critical role in helping the legal system, and in doing so advancing our freedoms. George Clooney, Jennifer Lawrence, Angelina Jolie and Ben Affleck may not be starring in this film, but The Decade of Discovery is on the top of my “must see” list for fall 2014 movies.  Well done Mr. Looby!  Click here for a sneak peak to the trailer.

Don’t Miss Your Chance to See It

Get ready movie fans. The Decade of Discovery is coming to a theatre near you! Beginning next week, Bloomberg BNA will be hosting a new event series, featuring Joe Looby’s ediscovery movie. The movie screenings will take place in noteworthy theater venues – preceded by a happy hour and followed by a panel discussion featuring distinguished guests. Kroll Ontrack is excited to participate as one of the sponsors for this multi-city, global event – Prague, Chicago, Washington DC, Houston, San Francisco, and New York. Limited seats are available, so I encourage you to register soon.

As they say in Hollywood, “I’ll see you at the (ediscovery) Movies!”

Part III – FRCP Amendments: The Long and Winding Road

winding road (2)

Where We Are Now

On September 16, 2014, the Judicial Conference officially approved the proposed amendments to the Federal Rules of Civil Procedure. The rules are now pending before the Supreme Court, and provided they are adopted, will be submitted to Congress by May 1, 2015. We are, finally, in the home stretch of rules being adopted – and it is looking more and more likely that the amended Rules will go in to effect December 1, 2015.

The Changes Being Made

As I blogged previously about the FRCP Amendments, there are a number of changes which directly impact ediscovery. The new Rule 1 stresses the cooperation of adverse parties in discovery – while the new Rule 26 ensures that that discovery is proportional to the case. Meanwhile, the new Rule 37(e) allows for court sanctions when ESI is not preserved.

Rule 1 ensures that both courts and parties are now explicitly responsible for just, speedy and inexpensive litigation. This means there is no room for hiding the ball or burying your opponent in documents.

The courts continue to emphasize proportionality – and Rule 26 is the embodiment of this trend. Rule 26(b)(2)(1) now lists specific proportionality factors, including:

  • The importance of the issues at stake
  • The amount in controversy
  • Access to relevant information
  • Resources
  • The importance of discovery in resolving the conflict
  • Burden versus benefit

All of these factors encourage opposing counsel to be reasonable, proportional, and willing to cooperate.

Lastly, the changes to Rule 37(e) now contain two sections:

  • The first section allows a court to respond when one party loses ESI and consequently prejudices the other party. Under the new rule, the court can take reasonable action to cure the prejudice – even if the loss of ESI was not the opponent’s fault.
  • The second section deals directly with the intentional loss of ESI – even when there is no prejudice to the opposing party, the court may assume the ESI was unfavorable or go as far as entering default judgment, among other remedies.

Want to know more? Check out Tom Allman’s paper “The Civil Rules Package As Approved By the Judicial Conference” which explores each and every amendment in depth!

September 2014 Ediscovery Case Summaries

ediscovery case studies

Shoddy Mobile Device Use Policy and Failure to Institute Litigation Hold Leads to Default Judgment and Hefty Sanctions
Small v. Univ. Med. Ctr. of S. Nev., No. 2:13-cv-00298-APG-PAL, 2014 U.S. Dist. LEXIS 114406 (D. Nev. Aug. 18, 2014).

Court Denies Forensic Imaging After Parties Do Not Agree to Production at Meet-and-Confer
Boston Scientific Corp. v. Lee, No. 2041 U.S. Dist. LEXIS 107584 (N.D. Cal. Aug. 4, 2014).

Parties’ Joint Stipulation Frustrates Defendants and Allows Plaintiffs to Not Produce Native Files
Melian Labs, Inc. v. Triology LLC, No. 13-cv-04791-SBA, 2014 U.S. Dist. LEXIS 124343 (N.D. Cal. Sept. 4, 2014).

Court Allows Use of Predictive Coding, but Says It Shouldn’t Have To
Dynamo Holdings v. Comm’r, Nos. 2685-11, 8393-12, 2014 U.S. Tax Ct. LEXIS 40 (U.S. Tax Sept. 17, 2014).

Judge Issues Sua Sponte Order Chastising Modern Ediscovery Practices
Sec. Nat’l Bank of Sioux City, Iowa v. Abbot Laboratories, No. C 11-4017-MWB, 2014 WL 3704277 (N.D. Iowa July 28, 2014).

Why Even the Most Cutthroat Lawyer Should Want to Cooperate


Litigants are rarely genuinely interested in cooperation during litigation. Litigation is, after all, an adversarial proceeding where one side hopes to win while the other side loses. In some instances, it seems like the competitive spirit overshadows any collaboration between litigants, their attorneys and their opponents.

Despite this, lawyers are doing their clients a disservice when they fail to endorse a collaborative attitude with regard to ediscovery. Following the Sedona Conference® Cooperation Proclamation, judges and courts are stressing the importance of collaboration throughout the ediscovery process. For example, see the following excerpts from 2014 judicial opinions encouraging cooperation and collaboration in ediscovery:

  • “[T]he time to tap flexibility and creativity is during meet and confer, not after.” Boston Scientific Corp. v. Lee, No. 5:14-mc-80188-BLF-PSG, 2014 WL 3851157 (N.D. Cal. Aug. 4, 2014).
  • To accommodate the plaintiff’s demand for the full forensic output of both personal and professional laptops would “encourage litigants to demand the moon thinking they can always fall back to something reasonable. They should be reasonable from the start.” Boston Scientific Corp. v. Lee, No. 5:14-mc-80188-BLF-PSG, 2014 WL 3851157 (N.D. Cal. Aug. 4, 2014).
  • The court’s order demanding plaintiffs respond to interrogatories about ediscovery methods was “based, at least in part, on…the fact that defendants were less than forthcoming with information needed to make further discussion of the issue a collaborative rather than contrarian process.” Ruiz-Bueno III v. Scott, No. 2:12-cv-0809, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013).
  • “If the parties had worked with their ediscovery consultants and agreed at the onset of this case to a predictive coding based ESI protocol, the court would not hesitate to approve a transparent mutually agreed upon ESI protocol.” Progressive Casualty Insurance v. Delaney,No. 2:11-cv-00678-LRH-PAL, 2014 WL 2112927 (D. Nev. May 20, 2014).

Interested in hearing a more? Check out Kroll Ontrack’s latest webinar recording, Five Good Reasons Why Even the Most Cutthroat Lawyers Should Want to Cooperate. Learn from two experienced Kroll Ontrack ediscovery experts, Cathleen Peterson and Adam Strayer as they discuss the many benefits of cooperation during the ediscovery process.

Pumpkin Spice, Fall TV and Candy Corn: Finding the “Best” in Autumn and the “Best” of Ediscovery


The air is chilling, the leaves are turning, and autumn is upon us. The change in seasons motivates us to start looking for the best fall treats and activities: visiting the best apple orchards, finding the greatest candy store, determining which coffee shop has the best pumpkin spice latte, or discovering the most entertaining new fall television. As the leaves drop, we are looking for only the best – and imitation pumpkin spice flavor just isn’t as good. It takes hard work and dedication to be the best, whether it is the best candy shop, the best latte, the best show, or the best ediscovery provider.

New York Law Journal Names Kroll Ontrack “Best Predictive Coding Solution”

On September 17, the New York Law Journal (NYLJ) awarded Kroll Ontrack the “Best Predictive Coding Solution” award in their annual Reader Rankings. The Reader Rankings are determined by the members of the New York legal community, who vote on the best legal service providers in over ninety categories. With more than 8,000 ballots cast, Kroll Ontrack is delighted to have earned this award and proud that legal professionals recognize that Kroll Ontrack is all things predictive coding.

Committed to the Best Predictive Coding Technology

Kroll Ontrack is committed to offering the best predictive coding technology in Ediscovery.com Review and helping our clients become the best at reviewing and producing discovery documents. Toward these goals, this year Kroll Ontrack published a Predictive Coding Guide which explains and expands on the process that is predictive coding – and it will help you understand all things predictive coding. Check it out!

Ediscovery Excellence Throughout 2014

In the last year, Kroll Ontrack has been recognized repeatedly as a leader in ediscovery and predictive coding. In April, the National Law Journal (NLJ) awarded Kroll Ontrack top honors for “Best Predictive Coding Ediscovery Solution.” Not long after the NLJ Survey Awards, the 2014 Gartner Magic Quadrant for Ediscovery Software was released. In this year’s quadrant, Kroll Ontrack was cited as having a “compelling vision” supported by impressive technology-assisted review (predictive coding) features. Kroll Ontrack is thrilled to continue a tradition of hard work, cutting-edge technology and excellent service, and the company is grateful and humbled by the recognition that it has been afforded this year. Thanks to everyone that voted in this year’s NYLJ Readers Rankings survey!

Get to Know Adam Strayer of Kroll Ontrack’s Ediscovery Consulting Group


A specialized field such as ediscovery produces a specialized workforce. Today, ediscovery consultants play a critical role in guiding clients through the complicated process of electronic discovery. Here at Kroll Ontrack, we are lucky enough to have some of the most seasoned and knowledgeable consultants. To get to know a little more about ediscovery consulting, we’re getting to know one of Kroll Ontrack’s very own consultants, Adam Strayer.

Q: Why should law firms and corporations use ediscovery consultants?

A: Ediscovery consultants have a wealth of experience with a wider variety of cases and have encountered more challenges and employed more ediscovery solutions than most law firms or in-house counsel. Further, a large ediscovery project can overwhelm even the most robust litigation support or in-house legal department and can drain resources from other cases and other clients.

Q: Tell us about your background and what led you to becoming an ediscovery consultant.

A: Before working as an ediscovery consultant, I was an attorney at the Federal Trade Commission (FTC), where I reviewed proposed mergers and investigated anticompetitive conduct. While there, I drafted and negotiated a number of Second Requests and gained a lot of insight into federal agency document requests.  That was a great foundation for what I am doing today—helping Kroll Ontrack’s clients develop strategies for responding to similar requests. I’ve also worked on the private practice side, defending companies in antitrust investigations and helping them respond to Second Requests and similarly large data requests in commercial litigation. After these roles, I moved into the ediscovery service provider world, where I worked on the managed review side—designing workflows, driving strategy timelines and responses, and meeting production deadline goals.

Q: What types of services do ediscovery consultants provide to a client?

A: Consultants have seen ediscovery solutions that have worked for other clients, as well as the solutions that haven’t worked. Specifically, we can assist with everything on the EDRM, from identifying and collecting key documents to custodian interviews and review and production strategies. Ediscovery consultants are also particularly helpful in developing predictive coding workflows and discovery stipulations.

Q: What value does an ediscovery consulting team bring to a client?

A: On a substance level, and as I’ve said before, consultants bring an assemblage of experiences that law firms and in-house counsel rarely possess. What that means for clients at the end of the day—cost savings and risk mitigation.

Q: Since we’re getting to know your work, it would be great to get to know a little about you. What is your ideal day outside of the office?

A: I live in Brooklyn Heights, just across the Brooklyn Bridge from Manhattan, but I really like to escape from the city as often as possible. This past summer, I spent a lot of time hiking in upstate New York and in Michigan’s Upper Peninsula. I’m also currently training for my first marathon.

Thank you Adam for sitting down with us and giving us some great insight into the world of ediscovery consulting!

Where in the World is Ediscovery?

where in the world is ediscovery


Where in the world is Carmen Sandiego?”

That was the question for thousands of kids in the 80’s and 90’s as they searched the digital globe for the sneakiest villains in the computer game industry. Their goal was to locate and arrest Carmen and her partners-in-crime in some of the most exotic, international locations.

As an ediscovery professional working for a global legal technology provider, I often ask myself, “Where in the world is my ediscovery project?” Though I am not tracking cyber-villains, my goal is to solve various international ediscovery challenges and knowing where the project and data are located is critical.

In a recent article I co-authored, “The Complex Challenges of Cross Border Ediscovery Management”, appearing in Today’s General Counsel, my London-based colleague, Daniel Kavan, and I discussed the many complex challenges associated with international ediscovery. Below, I will touch on some of them and explain why the best practice for international ediscovery management is using a knowledgeable, global provider to help.

Global Ediscovery Differences

Ediscovery is approached differently in almost every country and these global differences are often overlooked. Knowing the country’s approach to ediscovery is integral to ensuring that the project goes smoothly. Additionally, simple logistical factors like time zones, for example, can be easily forgotten. If not taken into account in the beginning, logistical costs can add up quickly. These projects can take four to six weeks to complete and extra staffing to accommodate the time difference may need to take place.  Addressing these issues early can help make the project run smoother.

Local, Regional, and National Regulations

Even more crucial to an ediscovery project are local, regional, and national regulations. Regulations are emerging to be one of biggest challenges that global ediscovery projects managers have to consider. Most ediscovery professionals are aware of the European Union’s data privacy regulations. However, less known but equally important are the EU state regulations that need to be considered when managing an ediscovery project. Also, on the other side of the globe, new regulations are beginning to emerge in Tokyo, China, Hong Kong, Singapore and other areas in the region. Navigating these regulations is not an easy process so make sure to bring the appropriate resources to the table.

Language and Cultural Differences

Another challenge that global ediscovery project managers face are language and cultural differences. Simple intonation of a word or emphasis on a syllable can mean something completely different in another language. Similarly, a Western gesture can be offensive to someone of another culture. Having a person with knowledge of these differences can ease the ediscovery process and help establish collaboration of the team and also of the opposing party.

Partner with a Global Ediscovery Provider

Knowing these challenges and how to address them, can save your cross-border ediscovery project. The fact that Kroll Ontrack is a global company, with numerous data centers all over the world – U.S., U.K., Japan, and a new data center in Germany – helps ease my client’s mind when I take on an international ediscovery case. With the help of Kroll Ontrack’s global presence and worldwide knowledge, I can work to avoid many of the issues other global ediscovery project managers face.

Back to (Law) School: Ediscovery Education by the Numbers

ediscovery education

Ediscovery Pop Quiz!

Question: What do you get when you add the number of law schools with the number of ediscovery classes offered and then divide by the number of students who enroll in these classes?

Answer: A pretty small number.

How do Law Schools Rate in Training Future Lawyers about Ediscovery?

The day after Labor Day highlights an important date in the calendar year: back to school! Whether you are starting kindergarten, high school, college, or law school, in September it’s time to buckle down and hit the books.

Over the years, Kroll Ontrack has had the opportunity to partner with an assortment of law schools, assisting in their ediscovery education efforts. However, with the start of a new school year, it is pertinent to ask: How are law schools generally doing when it comes to training future lawyers about ediscovery?

Kroll Ontrack recently examined 193 law schools’ course offerings, available on their websites, to determine whether they offered an ediscovery course or seminar, and if so, whether it targeted students, attorneys, or paralegals, and if it offered a technology component as part of the teachings. Our findings: of the 193 schools, 124 offer no ediscovery curricula beyond perhaps a few brief mentions in Civil Procedure.

Is Your Law School ahead of the Ediscovery Education Curve?

Now we don’t want to go so far as to call them “gunners,” but of the law schools surveyed, 69 or 35% are ahead of the curve and offer a course or seminar on ediscovery. Classes include such topics as: discussions of Zubulake, the Ediscovery Reference Model (EDRM), preservation and spoliation issues, and the recent amendments to the Federal Rules of Civil Procedure. Much of the material differs from school to school, as some offer a basic one credit “overview course” to help future attorneys spot ediscovery issues, while some offer three credit “skills courses” that tackle searching protocols, predictive coding, and technology platforms. Another noteworthy observation: ediscovery classes are offered irregularly, not every semester or every year, and the varying levels of instruction lacks standardization across schools, making it difficult for students to evaluate and compare ediscovery curriculum across schools.

Got Ediscovery Technology?

In addition to the case law and rules, gaining a practical knowledge of ediscovery is now essential to the modern practice of law. Actual hands-on use of these technologies is critical, and of the 35% of schools that offer a course or seminar on ediscovery, 8 offer a simulated technology component.

Students, not just schools, are realizing that ediscovery skills are marketable as a speciality in their future careers as modern attorneys. Law schools don’t have to make students experts in ediscovery technology, but have the opportunity to teach students to be proficient in basic technology concepts to be able to competently communicate with a client’s IT staff or an ediscovery provider. Furthermore, for the large number of practicing attorneys without an in-depth knowledge of ediscovery practices, 4 of the schools that offer an ediscovery class have programs beyond students for attorneys and paralegals. Technology is always evolving, and modern attorneys, paralegals, and litigation support staff seek to keep up to date with current technologies to best serve their clients.

To see how law schools are approaching the topic of ediscovery, check out Kroll Ontrack’s new “Ediscovery Education” infographic.

The Polls Are Now Open for the LegalTimes “Best Of” Awards

national law journal

From now until September 19th LegalTimes will be accepting votes for its annual “Best Of” survey. It’s designed to be a forum for end-users to rate the products and services they use in litigation.

Please take the time to vote today.  You don’t need to subscribe to LegalTimes to vote.

I can tell you from personal experience that getting aggregate feedback from the people who actually purchase and use legal technology solutions is not an easy task. Moreover, the by-product will be extremely valuable to your colleagues who are just now evaluating how to approach litigation with modern technology.

It is incredibly humbling that Kroll Ontrack has been nominated in the following categories:

  • Best end-to-end ediscovery provider
  • Best predictive coding ediscovery solution
  • Best data and technology management ediscovery provider
  • Best managed document review services
  • Best online review platform
  • Best end-to-end litigation consulting firm

To our wonderful readers with the time and experience required to cast a ballot, THANK YOU!  The survey is long but you do not have to answer every question. Once again, here is the link to the LegalTimes survey.  Polls are open until September 19th.