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!

The Deep Web: Into the Deep End of the Dark-side of the Web


Deep Web. Hidden Web. Invisible Web.

These are names for the underbelly of the Internet that most of us know nothing about. If you’re in that camp, below you will find a few deep Web facts that every legal professional should consider as the lines between security, privacy, data breach, fraud, computer forensics and ediscovery blur.

9 Deep Web Facts

  1. Underneath the World Wide Web lies a whole other Internet where sites are hidden unless you know how to use them and exactly what to look for.
  2. This underside of the web is known as the deep Web, and it contains many, many layers of content. (See an infographic explaining the layers of the deep Web.)
  3. Ninety-nine percent of all the data on the Internet is stored in the deep Web.
  4. The deep Web is a place on the Internet where search engines have not indexed the information.
  5. The deep Web is “invisible” to the mainstream public – especially sites behind private networks, archived sites or standalone pages that connect to nothing at all.
  6. The vast majority of the deep Web holds pages with valuable information – databases, internal corporate websites, government documents, academic journals, etc.
  7. Some parts of the deep Web are associated with illegal or black market transactions – drugs, fake identifications, stolen credit card numbers, counterfeit cash and weapons.
  8. The anonymous nature of the deep Web makes it a breeding ground for unconventional conduct, such as: geeky or esoteric forums, information sharing in censored or turbulent political environments and leakages of confidential documents by whistleblowers or intellectual property (IP) thieves.
  9. The deep Web holds future potential as a place to securely communicate, especially for individuals deeply concerned about privacy or security.

What do the Impacts of the Deep Web mean for Lawyers?

One of my Kroll Ontrack colleagues, Michele Lange, recently sat down with Inside Counsel to explain the deep Web and when it can be a valuable source of evidence in litigation. To learn more about the deep Web, read Michele’s full Inside Counsel interview, “The source that ESI lawyers need to stop overlooking.”

April 2015 Ediscovery Case Summaries

ediscovery case studies

Court-Ordered Seizure of Defendants’ Records in Separate Case Enough to Avoid Sanctions                                                                                                       Perez v. Metro Dairy Corp., 2015 WL 1535296 (E.D.N.Y. Apr. 6, 2014).

Court Redefines the Legal Standard for Preservation Obligations                 Blue Sky Travel & Tours, LLC v. Al Tayyar, 2015 WL 1451636 (4th Cir. Mar. 31, 2015).

Court Finds No Spoliation after Deletion of Emails during Routine Audit Gladue v. Saint Francis Medical Center, 2015 WL 1359091 (E.D. Mo. Mar. 24, 2015).

Ediscovery Costs Affirmed in Termination Dispute                                                 Colosi v. Jones Lang LaSalle Americas, Inc., 2015 WL 1186765 (6th Cir. Mar. 17, 2015).

U.S. Court’s Power to Compel Compliance with U.S. Discovery Arises Only with Jurisdiction                                                                                                               Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd., 2015 WL 631045 (S.D. Ohio Feb. 12, 2015).

Webinar On-Demand: Applying Technology to Information Governance

Information Governance

Within an enterprise, the importance of information governance (IG) is greater than ever as we soar towards a global economy equipped with rapidly evolving technology. Understanding how modern technologies and ediscovery practices apply to IG is integral.

Kroll Ontrack recently presented a webinar, Applying Technology to Information Governance, addressing just this. Panelists included:

  • Bennett Borden, a Partner at Drinker Biddle in Washington DC
  • Cathleen Peterson, Senior Vice President of Consulting, Client Services and Operations, Kroll Ontrack

Together, these two experts discussed the complexities of IG, along with how to develop and implement successful programs.

Defining Information Governance

The best place to start the conversation around information governance is to understand what it is and how it differs from information management.

  • Information Management: HOW information flows through an enterprise. Activities include collection and distribution of information in an organization.
  • Information Governance: WHY an organization has information in the first place. Activities involving information governance run the gamut from ediscovery and privacy to business intelligence and analytics.

Developing Information Governance Programs

There are multitudes of IG programs that a company could develop. What an organization chooses depends on its business needs and available resources. A successful program will leverage these key tenets, starting small and building momentum:

  • Define organizational objectives
  • Determine the information needed
  • Organize the information
  • Ascertain the value
  • Dispose of the information when it is no longer valuable

Common IG projects companies are undertaking today include:

  • Updating policies and procedures
  • Data consolidation and cleanup
  • Defensible data remediation
  • Intelligent migration
  • Legal hold

Information Governance Resources

Looking to learn more about what information governance (IG) is, how to develop IG programs, and what IG projects companies are undertaking today? Download this Kroll Ontrack webinar on-demand.

Further, don’t miss this new IG resource from the Information Governance Institute (IGI): Information Governance in 2020.

Preventing a Legal Hold Wildfire: A Guide

Legal Hold

Fire is fast and can rage out of control in a matter of moments. Before you know it, everything around you is engulfed in flames. That’s why fire prevention strategies are so important. Nothing is more important than knowing how to recognize the dangers and what to do in the event of a fire emergency.

The same goes for document preservation in litigation and regulatory matters. These are most often reactive events. Once the embers are lit, the process and resultant document preservation can spiral out of control in the blink of an eye.

Don’t Get Burned in Litigation or Regulatory Matters

In a 2014 survey (Preservation Costs Survey – Final Report by William Hubbard), 100% of respondents reported issuing legal hold notices. However, out of that group, only 63% reported tracking those legal holds. With legal and technical revolutions taking place in the discovery landscape—much like a fire prevention or disaster recovery plan—organizations need to have an effective legal hold plan and process in place. Such a plan should consider established case law, civil procedure rules and industry best practices, and organizations should leverage legal hold resources to help them along the way.

Legal Hold: Case Law, Rules and Tips

Recent court decisions and procedural rule amendments reiterate the importance of the duty to preserve electronically stored information. The pending changes to the Federal Rules of Civil Procedure (FRCP) notwithstanding, sanctions may be imposed on parties for failing to effectuate a proper legal hold, resulting in loss of relevant information. In some instances, this may even lead to a default judgment. Recognizing your duty to preserve, when it begins, what it entails and when it ends are key strategies that can save your organization time, money and stress and essential to any information governance or ediscovery strategy.

Don’t get burned by unknown or neglected preservation duties, ineffective legal holds or faulty deletion strategies. By following current case law, procedural rules and best practices, you may prevent the legal hold wildfire. But in the world of information overload, how do you find these tools?

A Legal Hold Guide by Kroll Ontrack

Kroll Ontrack has developed a legal hold preparedness guide to give you the tools you need. From tips and case law to the anticipated FRCP amendments, this guide will help your organization establish or validate your legal hold processes and procedures. Additionally, Kroll Ontrack’s Consulting Group is available at any point to assist.

After all, preparedness is essential, and only you can prevent preservation and legal hold wildfires. Explore Kroll Ontrack’s Legal Hold Guide today.

The Latest ESI Report Podcast, Highlighting Spring Ediscovery Conferences

ESI Report

Warmer weather, green grass, tulips and daisies, daylight savings – there are a few things this time of year that remind us of spring. But for those of us in the ediscovery industry, this time of year is also marked by a myriad of spring trade shows and conferences.

The Ediscovery Conference Connection

With Legal Tech, the Jolt Symposium, the ASU-Arkfeld Ediscovery and Digital Evidence Conference, Sedona Conference working group meetings, Ing3nious retreats, the University of Florida/EDRM Ediscovery Conference, IGI’s CIGO Summit and more, spring is a busy time of the year for ediscovery conferences! These conferences are a great opportunity to connect with other ediscovery professionals and get a feel for what is happening in the industry and around the world. Have you been to any ediscovery events recently? What are the ediscovery themes you have been noticing?

Download the ESI Report Podcast

On the ESI Report podcast, I recently sat down with James Sherer from BakerHostetler and my colleague, Eric Robinson. Listen to this podcast, 2015 Trade Shows and Trends in Ediscovery, which discusses prominent themes at various ediscovery conferences this spring. Also, be sure to watch for future editions of the ESI Report by subscribing to the Legal Talk Network.

Last Chance: Take the Ediscovery Fitness Quiz

ediscovery fitness quiz

After a long winter stuck inside with nothing to do but study up on the latest ediscovery issues, spring has finally arrived. It’s time to get outside and experience fresh air and nature once more! But before you flex your actual muscles, don’t miss this last chance to activate your ediscovery muscles.

Ediscovery Fitness Quiz

These days ediscovery is constantly changing, and we all have to keep up. Kroll Ontrack is here to help you with your ediscovery fitness goals and, in association with Above the Law, has developed a five minute quiz to help you gauge your level of ediscovery knowledge. Have you mastered the EDRM, or are you still catching up on the landmark ediscovery cases?

Take five minutes out of your day to take the ediscovery fitness quiz, and find out where you fall on the ediscovery spectrum. Whether you’re an ediscovery expert, or you’d like to know where you need to improve, the ediscovery fitness quiz is for you.

Take the Quiz and Enter to Win a FitBit from Kroll Ontrack

Complete the quiz and you’ll be entered for a chance to win a FitBit® Flex sponsored by Kroll Ontrack. The quiz takes just five minutes, and you’ll not only get the chance to flex your ediscovery muscles, you could also win a brand new gadget that will help you with your spring physical fitness goals. It only takes five minutes, so take the ediscovery fitness quiz today.

The quiz will only be available until April 10th, so hurry!

March 2015 Ediscovery Case Summaries

ediscovery case studies

Judge Peck Again Endorses TAR                                                                                   Rio Tinto PLC v. Vale S.A., 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015).

ESI Recovery and Restoration Costs Recoverable Under Rule 54       Comprehensive Addiction Treatment Ctr. v. Leslea, 2015 WL 638198 (D. Co. Feb. 13, 2015).

Ediscovery Costs Taxable Only as Copying Costs                                                 Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 2015 WL 351244 (N.D. Ill. Jan. 27, 2015).

Diligence and Defensible Deletion Prevent Sanctions                                           United Corporation v. Tutu Park Ltd., Inc., 2015 WL 457853 (V.I. Super. Jan. 28, 2015).

Deceptive and Evasive Plaintiffs Hit With Sanctions                                           Parsi v. Daioleslam, 2015 WL 525146 (D.C. Cir. Feb. 10, 2015).

Webinar on-Demand: Successful International Ediscovery

International Ediscovery

Ediscovery is approached differently in almost every country around the world, and international ediscovery best practices are evolving quickly in response to global litigation and investigations. Knowing a country’s approach to ediscovery is integral to ensuring that a multi-national ediscovery project goes smoothly.

Kroll Ontrack recently presented a webinar, Delivering Successful Ediscovery Projects across the Globe, hosted by ACEDS.  Panelists included:

  • Emily Cobb an attorney in New York City at Ropes and Gray,
  • Andrew Szczech a director at Kroll Ontrack, based in London, and
  • Thomas Sely a manager at Kroll Ontrack, based in France.

Together, these experts discussed the current complexities of global ediscovery, and how to ensure that your next international ediscovery project is successful.

Data Protection, Privacy and Data Transfer Laws

Despite the global nature of ediscovery, national boundaries still play a major role. For example, different countries have different approaches to privacy, making international data transfers risky. As discussed by the webinar panelists, it’s best to check local laws before moving any data, to ensure compliance with whatever privacy or trade secret laws that might apply. Sometimes, legal and technology innovations can be leveraged to avoid much of the risk.

Cultural Considerations, Traditions and Customs

Next, the experts on this webinar stressed that it’s not enough to understand the local laws on ediscovery. Even in our modern data-centric world, various cultures around the world view legal obligations and privacy in very different ways. For example, employees in the US may be accustomed to a limited expectation of privacy in the workplace and broad legal discovery, but in many European and Asian countries, the customs and attitudes greatly differ.

Practicalities of International Ediscovery

In addition to a solid understanding of local laws and customs, the webinar panelists concluded the presentation with some techniques and best practices. Specifically, they addressed the following topics:

  • Collecting data scattered in different countries
  • Processing across various jurisdictions
  • Reviewing documents in multiple languages
  • Dealing with clients with different ediscovery experience levels in their countries
  • Straddling cost models across countries

Kroll Ontrack – Global Reach, Local Expertise

From collecting data in hundreds of countries each year to hosting petabytes of information in US, UK, Europe, and Asia data centers – including a new data center in France – Kroll Ontrack is both local and global.