September 2017 Ediscovery Case Summaries
Court Orders an Aggressive Production Timeline, Citing Efficiencies of TAR
Court Puts the Brakes on Auto Manufacturer’s Proposed Discovery Protocol Involving an Onerously Restrictive Onsite Inspection
Court Rules that Asking for Everything is Overly Broad and Unacceptable
Mere Speculation is Not Enough to Compel an Additional Search for ESI
Privilege Waived as a Result of Reckless Production and Inadequate Clawback Agreement
Manage Unstructured Data with Unified Archiving: A Case Study
As data volumes grow in today’s digital workplace, so do costs and risks associated with storing large amounts of data for litigation, investigations, regulatory requests, compliance and other requirements. To address these costs and risks, organizations need one technology system to seamlessly address information management, bringing together data from disparate systems while eliminating duplicate data sets. The compliance and ediscovery challenges of one organization are documented in a recent case study, developed by ZL Technologies and KrolLDiscovery.
An Archiving Case Study
A large, international bank, based in Switzerland, operated two instances of a compliance technology solution. These compliance tools were incompatible and incapable of merging, thereby creating an unnecessarily complex compliance process. Also, the bank sought a platform that would facilitate searching for documents across the enterprise to aid in collecting and producing documents in legal discovery matters.
The bank understood that while compliance and ediscovery are often treated as separate functions, the two are closely interrelated and use much of the same data. This relationship led the bank to look for a solution that could offer a single repository for both systems in order to streamline compliance and ediscovery processes. The bank turned to KrolLDiscovery and its partner ZL Technologies to assist in implementing such a solution. Combining KrolLDiscovery’s experts in data management with ZL Technologies’ dynamic information governance platform, enables enterprises to better understand what data they have and where it resides.
The ZL solution was initially deployed in the bank’s Americas region, specifically in the United States and Canada. Once proven successful in these locales, the bank decided to launch the solution in other international locations, deploying it in its Bahamas, Europe and Asia offices. Beyond standardizing on a unified, global compliance and ediscovery technology platform, the bank also established its governance and data management principles as well as compliance and ediscovery workflows, critical goals for the global enterprise.
ZL and KrolLDiscovery: A 10+ Year Partnership
With the ZL Unified Archive platform, KrolLDiscovery helps to eliminate common business problems that go along with the unrelenting growth of data. Recently, KrolLDiscovery and ZL celebrated more than 10 years of partnership helping organizations manage unstructured data for ediscovery, compliance, records management and knowledge management.
A Taste of Ediscovery in Brazil
Olá!
Brazil is the next stop on our 2017 ediscovery world tour. As the only Portuguese-speaking country in South America, Brazil has the largest population, area and economy on the continent. An increase in industrial production, consumer and business productivity, and a stable currency have set the stage for flourishing business opportunities in Brazil, accompanied by heightened volumes of litigation and investigations…ripe for the use of ediscovery technology.
Brazil’s Unique Ediscovery Conditions
Brazil is a civil law jurisdiction, where there is no procedure or requirement to use discovery-like mechanisms in legal proceedings. Additionally, the process of collecting, filtering and reviewing data is unfamiliar to Brazil’s business culture, impaired by the fact that much corporate data is in a hard copy or non-searchable digital format. Given that a considerable volume of data is not in a format that makes ediscovery processing easy and streamlined, many Brazilian corporations view ediscovery processes and expenses as difficult to justify.
This does not mean, however, that ediscovery is absent in Brazil. Collecting and processing data in Brazil is driven mainly by practical necessity due to national and international regulatory investigations, international arbitration issues, mergers and acquisitions of Brazilian companies, and out-of-country litigation extending into Brazil. In all of these legal and regulatory scenarios, Brazilian companies are benefiting from ediscovery technology. Furthermore, in 2014 Brazil passed an anti-corruption law called the “Clean Compliance Act,” compelling some corporations and their counsel to take advantage of ediscovery technology in corporate compliance efforts.
What About Data Protection and Privacy in Brazil?
Currently, Brazil does not have an extensive set of data protection or privacy laws. However, Brazilian statutory law protects narrow classifications of data. For example, the Brazilian Federal Constitution and certain regulations, such as medical rules and consumer codes, contain privacy protections. Furthermore, Brazilian law does not expressly restrict cross-border data transfer, but transferring data out of Brazil is not the norm. Also, there have been recent changes impacting the need for increased security and protection of personal data, such as the Brazilian Internet Law. Lastly, keeping up with changes in Europe and Asia, it is highly expected that Brazil will enact its first over-arching data protection law in the near future.
Around the World with KrolLDiscovery
KrolLDiscovery is your international ediscovery resource, with current information about predictive coding in Australia and Ireland, ediscovery cooperation in Canada, fighting fraud in France, data protection in the UK, Japan and China, and ediscovery practices in Belgium.
Hurricane Harvey: Helpful Tips for Handling Your Data
For what promises to be a long and catastrophic hurricane season, the wrath has just begun with Hurricane Harvey on parts of the United States. The 2017 hurricane season is set to last until November 30 and is said to be an above-normal season for the Atlantic. According to Live Science, the region has a 70 percent chance of experiencing between 11 and 17 storms this season and between five and nine of these storms may elevate to hurricane status.
As the hurricane season lets loose, there are important steps to keep in mind to increase your odds of a successful data recovery from a wet device. Many flood victims when returning to their homes gather the items important to their lives. Eventually, they might begin to wonder if the important data stored on their electronic devices can be recovered and what they can do to help. Whether you have sacred family photos or important personal documents, understanding how to minimize the damage to your data can be helpful at this time.
We recommend that flood victims fearing loss of their vital information consider the following before assuming that the damage is permanent:
- Never assume that data is unrecoverable, no matter what it has been through
- Never attempt to plug in or turn on water-damaged devices
- Do not shake, disassemble or attempt to clean any hard drive or server that has been damaged; improper handling can make recovery operations more difficult which can lead to valuable information being lost
- Never attempt to dry water-damaged media by opening it or exposing it to heat, such as from a hairdryer
- Do not attempt to operate visibly-damaged devices
- Do not attempt to freeze-dry media
- Do not use common software utility programs on broken or water-damaged devices
- For mission-critical situations, contact a data recovery professional before any attempts are made to reconfigure, reinstall or reformat
Data loss is stressful, but dealing with a disaster on top of it is far worse. If you are affected by a hurricane, or other natural disaster, we hope you find these tips helpful in easing the process of your recovery.
Hot Topics in Ediscovery
As you get ready to head back to the office this fall, make sure you’re up to speed on some of the most significant developments in ediscovery from this summer.
New Data Protection and Transfer Laws in Japan and China
Earlier this summer, Japan and China enacted significant changes to their data protection and transfer laws. In Japan, the Act on the Protection of Personal Information (APPI) went into full effect on May 30, 2017 and companies are expected to make immediate changes. China’s controversial Cybersecurity Law went into full effect in early June 2017 and focuses on network operators managing data in the country.
Antitrust Law and Technical Innovation
Technological advancements throughout the world have transformed policies and institutions that enforce antitrust law. Check out parts one and two of our video series focusing on how policy and technology changes create implications in the many fields of antitrust law.
Civil Procedure Rules in State Court
Following the release of the 2015 amendments to the Federal Rules of Civil Procedure (FRCP), states have taken different approaches to updating their own rules. Some states have adopted the new FRCP, other states are currently considering changes and a handful of states march to the beat of their own drum. Learn more about your state and states that may be important to you in the future.
Fighting Fraud in France
Fraud, corruption and bribery hit close to home for legal and IT professionals around the globe. In France, game-changing legislation has taken effect to strengthen anti-corruption efforts. Sapin II, as the legislation is called, is modelled on the U.S. Foreign Corrupt Practices Act (FCPA) and the U.K. Bribery Act. U.S. businesses with global operations should be prepared with renewed understanding of France’s regulations.
Whether you have a matter that requires collection of electronically stored information (ESI) in a country with strict data protection rules or have questions about state rules of civil procedure, you can keep up to date on everything ediscovery with weekly updates from The Ediscovery Blog.
That’s a Wrap! Reflecting on ILTACON 2017
Following the Path to Maturity amidst Innovation
A few weeks before more than 1,600 members descended upon ILTACON 2017 in Las Vegas, I had a chance to catch up with a couple distinguished peers in our industry to talk about their latest areas of focus. Always respected as “Blue Ocean” strategists, I was keen to hear their views on the latest and greatest challenges. The response was, perhaps, a surprising precursor to one of the major underlying themes amongst ediscovery and information management professionals at ILTACON this year: ensuring mature processes are in place.
The Newer Generation Unites with Seasoned Professionals
The primary focus of ILTA has always been peer-to-peer education. It was apparent at this year’s annual conference that, amongst a mature community, there is also a growing third generation of newer ediscovery professionals. Full EDRM lifecycle project management, processes and support; balanced outsourcing; use of multi-faceted Technology Assisted Review (TAR) strategies, predictive coding and Continuous Active Learning (CAL); and upstream, holistic information governance and effective legal hold were all familiar, prevalent themes at ILTACON 2017. The major difference is that this new generation of professionals are learning and adopting mature, data-driven principles, management skills, discovery processes and innovative technology derived from the path others have been blazing and curating over the last decade or two. So, foregone questions about “should we do this” or “how can we do this” have evolved into deeper discussions about “how do we do this best” and “which tools do I need to get the job done.”
From Predictive Coding to the Cloud…and Everything in Between
Corporations continue to build process, control and maturity around their approach to ediscovery as part of their broader efforts to help outside counsel efficiently respond to discovery under more astringent financial and information security constraints. Therefore, the community came to ILTACON 2017 seeking ideas and tools to maintain control of data, complement corporate movement to the cloud and build process efficiency into the EDRM lifecycle.
First, the debates over predictive coding have more or less waned. Instead, we found a deliberate focus on stronger implementation and significant rates of adoption, especially given enhanced methods such as CAL, which is fully built into KrolLDiscovery’s TAR solutions and complimented by our suite of technologies to accelerate document review. For instance, we learned during the ILTACON session I moderated, “Latest Trends in Leveraging Analytics in Litigation Support,” that 62 percent of the ediscovery professionals in attendance use predictive coding sometimes and 40 percent sometimes used CAL, too. Meanwhile, 27 percent have never used predictive coding. These statistics alone demonstrate great levels of acceptance and also reveal that the up-and-coming generation is ready to jump in!
Another significant ILTACON 2017 theme was the cloud. When it comes to corporations moving some data sources to the cloud, ILTACON attendees came seeking truly cloud-enabled and optimized ediscovery technology like KrolLDiscovery’s tool, NebulaTM. While one ILTA session poll revealed that 10 percent of corporate clients always use ediscovery analytics behind their firewall and an additional 29 percent do so sometimes, the majority do not. Therefore, when faced with the average ediscovery project, stakeholders continue to rely heavily on third-party expertise and technology.
Last, but certainly not least, was the topic of data security and control. There continues to be a trend toward centralized information management systems to better maintain and analyze corporate data and ensure effective legal holds through solutions like KrolLDiscovery’s Unified Archive. Yet, the majority of projects or initiatives continue to be motivated by reactions to the cyber attack and data loss epidemics, GDPR readiness and increases in litigation or investigations. Of course, the truly global ILTA community also came seeking secure, nimble and portable solutions that they could operate, such as KrolLDiscovery’s Remote Collection Manager (RCMgr®) to complete data preservation, collection and transfer anywhere in the world.
See You Next Year: ILTACON 2018
Whether the session labels touted “analytics,” “cloud,” “ediscovery,” “information governance,” “artificial intelligence,” “business intelligence” or “Blockchain,” the entire ILTA community, across peer groups, came together with one overarching theme in 2017: how do we more efficiently leverage better technology to compile, process, distill, analyze and transform information into actionable results. At ILTACON 2017, it was my privilege to tackle these challenges with legal technology colleagues from around the country and around the world. I am definitely looking forward to doing it again, August 19 – 23, 2018 in Washington, DC.
August 2017 Ediscovery Case Summaries
Court Swiftly Denies Pop Star Defendant’s Motion for Adverse Inference, but Allows Defendant to Cross-Examine Plaintiff About Spoliation in Front of Jury
Mueller v. Swift, 2017 U.S. Dist. LEXIS 112276 (D. Colo. July 19, 2017)
Potentially Relevant Documents, Marked as Non-responsive, Unable to Remain a Secret in Trade Secret Theft Case
Nachurs Alpine Sols., Corp. v. Banks, 2017 U.S. Dist. LEXIS 104778 (N.D. Iowa July 7, 2017)
No Harm, No Foul: In Spoliation of Evidence Case, Court Unable to Apply Sanctions Without Prejudice
Snider v. Danfoss, 2017 U.S. Dist. LEXIS 107591 (N.D. Ill. July 12, 2017)
Failure to Abide by Court’s Discovery Order Leads to Sanctions
Bird v. Wells Fargo Bank, 2017 U.S. Dist. LEXIS 113455 (E.D. Cal. July 20, 2017)
Violation of Privacy is Not a Complete Defense: Supreme Court of California Grants Plaintiff’s Motion to Compel Contact Information of Fellow Employees
Williams v. Superior Court, 2017 Cal. LEXIS 5124 (Cal. July 13, 2017)
Belgium: The Ediscovery Capital of Europe
Hallo! Salut!
KrolLDiscovery is your international ediscovery resource, with current information about predictive coding in Australia and Ireland, ediscovery cooperation in Canada, fighting fraud in France, and data protection in the U.K., Japan and China.
Our 2017 ediscovery world tour brings us next to Belgium. As a divided country linguistically, culturally and geographically, Belgium has impacted the way leading international corporations and law firms are implementing new ediscovery practices.
Unique Ediscovery Practices in Belgium
To speak of Belgium is to speak of Brussels. It is undeniable that Brussels is at the center of the European Union and the host of the European Commission itself. Brussels is perhaps the most international city in the world, attracting leading international corporations and law firms. When it comes to ediscovery, Belgium has two distinct markets – international and national. As a result, Brussels has become one of the biggest ediscovery markets in Europe due to the size and the number of cases worked on in country. Law firms in Brussels work globally and rely on sophisticated ediscovery technologies for international cases.
Ediscovery Technology Needed Outside of Brussels
As the de facto capital of Europe, Belgium is at the center of the European ediscovery and yet, at the same time, removed from it. At the focal point, there are a massive amount of investigations in Brussels, yet there are no formal discovery requirements in country. As such, there is a greater need for education on the applications of ediscovery technology for companies and law firms who are operating outside of Brussels. A majority of Belgian ediscovery users are prominent, global law firms, working in competition-focused practice areas that involve multiple jurisdictions. By other law firms becoming educated on various ediscovery technology, it will improve how volumes of electronic data and documents in different languages are handled. Furthermore, corporations will be more likely to use ediscovery technology following a dawn raid and for large-scale compliance audits, culminating in more effective management of these legal matters.
Tips When Conducting Ediscovery in Belgium
- Select an ediscovery provider that is as international as the case; this will go a long way to reducing cultural, legal and linguistic misunderstandings.
- When there are large merger control cases, choose the best review technology available, with advanced analytics and predicative coding, in order to not be penalized for missing documents or deadlines.
Don’t be afraid to use ediscovery technology in new areas, such as arbitration or compliance audits. International firms in Brussels are increasingly using ediscovery technology in new legal scenarios that involve large data sets.
ILTACON 2017 – Pre-show Preview: Viva Las Vegas!
Look out Vegas, here comes ILTA (again)! After a brief 2016 hiatus to the Gaylord in National Harbor, Maryland, ILTACON is back in Las Vegas for 2017. This year’s conference will be held at the Mandalay Bay, just a couple blocks down the strip from Caesar’s Palace for those of you that attended ILTACON 2015.
When you reach the shimmering gold exterior of the Mandalay Bay, you might be overwhelmed with the abundance of food, entertainment and nightlife opportunities. So, just to make sure you don’t miss any of the valuable activities as ILTACON celebrates its 40th birthday, we thought you might appreciate a pre-show preview.
DATE: This year’s show occurs a week or two earlier than in years past: Make sure you have August 13 – 17 blocked off on your calendar.
SESSIONS: ILTACON is known for its stellar educational sessions and keynote addresses and this year is certain to not disappoint. For those of you tracking trends in predictive coding and analytics, make sure you attend the following session on Monday, August 14 from 1-2pm, where my colleague Tom Barce will be speaking as a part of the panel “Latest Trends in Leveraging Analytics in Litigation Support.”
DEMOS: Many vendors at ILTACON will be demonstrating their innovative products to make your legal technology jobs easier. KrolLDiscovery’s private suite (Surf C Suite) will be open to clients each day. We’ll keep food and beverages stocked for you to take a break from all the action. Plus, we’ll have space for you to learn more about our products, services and how we can help you. Schedule a demo with us today.
PARTIES: After a long day of sessions, make sure you make time for some refreshments! The exhibit hall will open on Monday night from 7-9pm with food, drinks and fun. The theme is “galaxy,” so bring your space-age costumes. Be sure to stop by KrolLDiscovery’s booth #500/502 for cool margaritas after a hot day in Vegas. We will also have snacks and happy hour at booth #500/502 on Tuesday and Wednesday; we look forward to seeing everyone at ILTACON 2017. Viva Las Vegas!
Document Review: MythBusters Edition
A couple years ago, I wrote a blog entitled, “Bust These 4 Myths on Your Next Document Review.” In this blog, I looked at four common document review myths and the realities behind the fallacies. Fast forward two years, there is no better time to revisit these myths to take the pulse of document review in 2017, considering the evolution of ediscovery technology, processes, rules and case law.
Myth #1: Document review just happens; you don’t really need a plan.
Since the adoption of the FRCP amendments we have seen courts admonish parties for:
- Discovering new documents not in the original collection
- Missing documents that should have been produced the first time around
- Amassing costs for inefficient discovery methods
With document review technology at the top of its game, the misconception that document review is trivial is fading. In meeting with corporations and law firms, I hear legal teams appreciating the importance of having a review methodology. More often than not, those teams are inquiring as to how their processes can be improved.
2017 Document Review Lesson #1: Don’t procrastinate or wander aimlessly when it comes to review. Know your path from collection through production and be able to justify your methods.
Myth #2: Any attorney can conduct (or manage) a document review.
Today, document review is not the unglamorous chore of former times. With advancements in the review tools, increasingly senior attorneys are finding themselves immersed in document review more than in years past. The tools are easier to operate than ever before, and senior attorneys – typically subject matter experts on the case – are in the best position to review the most pertinent documents, especially if predictive coding is used.
At the same time, in order to fully leverage analytics and predictive coding features, the attorney will need advanced training or someone skilled in using these powerful features to guide them through. With formable technology at their fingertips and millions of documents to wrangle, today’s document reviewers are not only licensed and highly qualified attorneys; but also may have specific training and certifications in various document review platforms. Many have expertise in a different language other than English, or substantive knowledge in their practice area.
2017 Document Review Lesson #2: The days of brute force attorney review are over. Today’s document review requires subject matter experts in the case, working side-by-side with technology-minded attorneys that know how to maximize time and minimize costs.
Myth #3: All document review technology is equal.
What appears equal at face value, is not equal in action. While most major review tools function generally in a similar manner, there are enhancements unique to a particular provider and its tool set. From running searches and batching documents to using predictive coding or reviewing audio files, experienced document reviewers will recognize the fine distinctions of each provider’s platform, knowing when and how those features can be helpful. If they cannot answer a question, the reviewer should know how to get a hold of the technology provider’s technical support team to lend a hand.
2017 Document Review Lesson #3: Get into the technology weeds. Understanding the nuances of a provider’s technology is the only way to reap the benefits of a modern document review.
Myth #4: It will be obvious when you can stop review…when you run out of documents.
Predictive coding has changed how legal teams approach document review; however, even in 2017, the adoption of this is technology is marginal at best. Outmoded teams are still conducting linear reviews of every document, while progressive teams have figured out how to embrace predictive coding so that only the most vital documents are being reviewed for production. But, this does require a team that knows how to sample and interpret the metrics and reports generated by the technology.
2017 Document Review Lesson #4: The terminology related to predictive coding can cause one’s head to spin. Dust off your math skills (or leverage a specialist) – it’s the only way a savvy document review professional knows when a review is finished.
Leverage KrolLDiscovery for Document Review
Looking to modernize your document review methods?
KrolLDiscovery offers advanced document review services around the world, with fully managed review teams and up-to-date facilities in eight locations in four countries: Washington D.C., Chicago, Pittsburgh, Miami, Minnesota, London, Poland and Germany. KrolLDiscovery’s managed document review services teams provide you with specialized document review attorneys to meet your case needs. KrolLDiscovery review platforms are integrated with top-of-the line technology-assisted review and predictive coding features to search, categorize, redact and annotate documents. Our review teams utilize this technology to maximize efficiency through intelligent document prioritization and categorization, automated workflow, advanced search functionality and multilingual support.
Patrick Garbe: Is it common practice for Canadian companies to use a data transfer ag...
Mr Alistair Ewing: They need to do this in Computer Forensics not just eDiscovery. Where ...
John L. Ries: Actually, I think at this point, it would be better for the British go...
Curt Sachs: Interesting blog reading. Thanks for educating me...
Craig Lee: Excellent article, Tom. Your comment about there not being a single te...
