All posts tagged ediscovery

May 2017 Ediscovery Case Summaries

The Court Denies the Plaintiff’s Patently Overbroad Discovery Requests
Rockwell Med., Inc. v. Richmond Bros., 2017 U.S. Dist. LEXIS 57313 (E.D. Mich. Apr. 14, 2017)

Court “Rather Reluctantly” Intervenes in Discovery Dispute, Prefers the Use of TAR Before Culling by Search Terms
FCA US LLC v. Cummins, Inc., 2017 U.S. Dist. LEXIS 45212 (E.D. Mich. Mar. 28, 2017)

Sanctions Decision Generates “Considerable Heat” and Split of Authority; Supreme Court Ultimately Reverses $2.7 Million Award
Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (Apr. 18, 2017)

Dialing the Wrong Number Has Its Consequences: Court Grants Motion to Compel Against Debt Collector
Meredith v. United Collection Bureau, Inc., 2017 U.S. Dist. LEXIS 56783 (N.D. Ohio Apr. 13, 2017)

Hold the Phone: No Sanctions for Destroyed ESI When Content Is Unknown and Other Routes to Discover ESI Are Available
Zamora v. Stellar Mgmt. Grp., 2017 U.S. Dist. LEXIS 55361 (W.D. Mo. Apr. 11, 2017)

50 States: Civil Procedure Rules in State Court – Part 1

The 2015 FRCP Amendments have been in effect for over a year and federal courts have been increasingly vocal in the areas of proportionality, spoliation and sanctions. Have states followed suit?

The last time KrolLDiscovery rolled out a comprehensive look at state ediscovery rules was after the 2006 FRCP Amendments. Back then, we saw that some states had been quick to address ediscovery, with many states adding their own unique flavor. Fast forward to the 2015 FRCP Amendments: Are states adopting the new language in their civil procedure rules or are they taking their own approaches?

At KrolLDiscovery, we have been looking at each states’ civil procedure rules, and we are excited to bring you the first of our updates. Here is the latest on what three states have been doing since the 2015 FRCP Amendments were enacted.

Texas, An Ediscovery Pioneer

The Lone Star State was one of the first jurisdictions to enact ediscovery rules and it lives up to its name by writing its own rules. Currently, its focus is on the spoliation of evidence, as the current rules are not clearly defined. In April 2016, the Texas Supreme Court requested review of a proposal that would solve this problem. No decisions have been made yet, but it has joined federal courts in making this a central discovery issue in 2017.

Examine current information on state ediscovery rules in Texas.

Massachusetts Takes One Step Forward with Rule 1

In Massachusetts, lawmakers initially proposed adopting the 2015 FRCP Amendments and the issue was intensely debated. Ultimately, the state decided to stick with the 2006 language, but made an exception for Rule 1, placing equal responsibility on the parties and the courts to “ensure the just, speedy, and inexpensive determine of every action,” promoting cooperation among litigants.

Look at developments in state ediscovery rules in Massachusetts.

New York Does Its Own Thing

New York has adopted its own ediscovery framework by adding subtle ESI accommodations to its existing rule language. For example, it adds an entire section addressing ediscovery from non-parties and requires counsel for parties who anticipate ediscovery to be “sufficiently versed in . . . their clients’ technological systems to discuss [ediscovery issues] competently” at pretrial conferences.

Learn more about state ediscovery rules in New York.

Over the next month, we will work to update each of the 50 states on our Rules and Statutes Map. If you are tracking ediscovery provisions in state courts, stay tuned throughout the next month for further updates!

Germany: The Hub of European Ediscovery Technik

Guten Tag!

From information about predictive coding in Australia and Ireland to cooperation in Canada and data protection in the UK, KrolLDiscovery is your international ediscovery resource.

The next stop on our ediscovery world tour is Germany. As a leader in technology exports and the world’s fourth-largest economy, legal technology, privacy, security and data protection practices are a well-known and vital part of Germany’s business culture.

LITIGATION AND ENFORCEMENT IN GERMANY

Germany’s central location in the European Union and expertise in technology make it an attractive location for international business. As such, it is no surprise that international disputes and exacting governmental regulation are also a regular part of German business activities. Specifically, when it comes to litigation, German law firms are commonly managing cross-border disputes, often involving jurisdictions such as the United Kingdom and the United States where ediscovery is required in civil cases. Further, Germany’s position as a prominent global economic force means that many companies’ planned mergers will be large enough to attract the attention of the European Commission and be subject to a merger control investigation. Lastly, Germany’s own independent competition authority, the Bundeskartellamt, is one of the most active in Europe and has a reputation for its meticulous and demanding approach to investigations. For German companies facing investigations, regulatory scrutiny or cross-border litigation, ediscovery technology provides a lifeline in meeting requests for volumes of business documents.

WHAT MAKES GERMAN EDISCOVERY PRACTICES UNIQUE

What is unique about these cases is the way German lawyers are using ediscovery technology. German lawyers not only use ediscovery technology to search and analyze data to discover material facts or produce large amount of data to regulators in a short period of time. They also need the technology to redact personally identifiable information in accordance with Germany’s strict data protection laws. Data protection in Germany is primarily regulated by the Bundesdatenschutzgesetz (BDSG), which implements the European Union’s Data Protection Directive (which will be replaced by the General Data Protection Regulation in May 2018). In addition, there are state data protection laws providing legal requirements for data processing carried out by state-level public authorities or public bodies.

TIPS WHEN CONDUCTING EDISCOVERY IN GERMANY

  • Prioritize information governance and know where your data is before you start a case.
  • Use predictive coding. Data volumes are growing all the time and predictive coding is the most efficient way to find the right information. Regulators are not sympathetic to those who miss deadlines.
  • Choose quality over cost. In multi-jurisdictional cases, mistakes come at a high cost. Choosing the cheapest providers in each company can often be a false economy. It is safer to choose an established provider with a network of local offices and experts who have experience in working collaboratively across jurisdictions.

Stay to speed on global ediscovery practices. Don’t miss this whitepaper, “A Practical Guide to Cross-Border Ediscovery.”

April 2017 Ediscovery Case Summaries

Seller’s Remorse: Court Imposes Sanctions for Failure to Preserve ESI in Sale of Business
ILWU-PMA Welfare Plan Bd. of Trs. v. Connecticut Gen. Life. Ins. Co., 2017 WL 345988 (N.D. Cal. Jan. 24, 2017)

Court Acts Under Its Own Power to Impose Sanctions for Intentional ESI Spoliation
Hsueh v. N.Y. State Dep’t of Fin. Servs., 2017 WL 1194706 (S.D.N.Y. Mar. 31, 2017)

Hold the Pepperoni: “Menacing Scourge” of Boilerplate Responses Leaves a Rancid Taste in Judge’s Mouth
Liguria Foods, Inc. v. Griffith Labs., Inc., 2017 WL 976626 (N.D. Iowa March 13, 2017)

Angie’s List Receives a Negative Review: Court Compels Production of ESI
Williams v. Angie’s List, Inc., 2017 U.S. Dist. LEXIS 54270 (S.D. Ind. Apr. 10, 2017)

Court Finds That “Form Over Substance” Does Not Satisfy Motion to Compel Production of ESI
Duffy v. Lawrence Mem. Hosp., 2017 U.S. Dist. LEXIS 49583 (D. Kan. Mar. 31, 2017)

United Kingdom: Ediscovery Around the World

The United Kingdom, a common law jurisdiction, is the second most established geography for ediscovery after the United States. There is a high degree of familiarity with ediscovery in the United Kingdom because edisclosure is a formal stage of the civil litigation process, governed by Part 31 of the Civil Procedure Rules, along with associated Practice Directions.

Our next stop exploring data collection, privacy, proportionality and production practices in the Americas, EMEA and APAC brings us to the United Kingdom.

How are ediscovery practices in the United Kingdom different from neighboring countries or the United States?

Because there has been a keen emphasis on proportionality for a longer time, edisclosure in the United Kingdom is narrower than ediscovery in the United States.  In addition, unlike many of its European neighbours, the United Kingdom has had edisclosure form part of its Civil Procedure Rules for over a decade. During that time, practical know-how regarding ediscovery technology has spread beyond litigation, so most lawyers are comfortable with the advantages a full analysis of electronic evidence can bring to their case.

How are data protection and privacy laws impacting ediscovery in the U.K.?

U.K. law firms frequently face cross-border discovery issues, which comes with the significant challenge of transferring data across borders to countries where different rules and regulations apply. While the United Kingdom is considered less strict than Russia and China, the EU General Data Protection Regulation (GDPR) might change this. Further, impending Brexit implications are also expected to have some impact on the way that data is handled for disputes and investigations in the United Kingdom. The bottom line: in the midst of this uncertainty, it seems sure that there will be more scrutiny on the holding of personal data and more fearsome penalties for mishandling personal data in the future.

What best practices are recommended for conducting ediscovery in the United Kingdom?

Akin to ediscovery practices around the world, edisclosure in the U.K. is often delivered by collective teams, making teamwork an absolute best practice. Further, similar to many other countries, disclosure and regulatory deadlines must be met in a well-ordered and timely fashion. The urgency and precise requirements of ediscovery cases carry a high degree of risk, so “getting it right” calls for expertise, care and coordination, as well as responsive support. For this reason, practicing ediscovery is as much about the people you work with, as it is about the technology you use.

In the U.K., companies and their counsel are interested in taking a more surgical approach to data selection. Instead of using keywords, review platforms offer analytical tools that can reveal more about the data, helping to provide a better understanding of who was involved, how they communicated and the words they actually used. In medical terms, this level of sophistication is akin to keyhole surgery, as opposed to older and cruder methods. Additionally, ediscovery technology can be used to perform proactive checks on employee behavior. Keeping up to date with ediscovery market developments is another new ‘best practice.’ The United Kingdom has a competitive ediscovery industry, so being able to quickly select the right provider for a quantifiable advantage (such as local presence or a particular technology) is of tremendous benefit.

Looking to stay up to speed on global ediscovery practices? Don’t miss this whitepaper, “A Practical Guide to Cross-Border Ediscovery.” From predictive coding practices in Australia and Ireland to cooperation in Canada, KrolLDiscovery is your international ediscovery resource.

Using Cellebrite in Mobile Phone Investigations

What happens when your company is facing probable litigation and key evidence is located on a smart phone? Demand for mobile device data is increasing in litigation and investigations and it presents a complex, new playing field for legal professionals and computer forensics experts.

New Tools Specifically for Cell Phone Forensics

Drilling into a phone’s memory requires a certain level of process and technology expertise and if the technology product Cellebrite is not currently on your radar, it will likely surface soon. Cellebrite is a widely used mobile device forensics tool for data extraction and analysis. The combination of Cellebrite software and hardware helps the investigator delve into the messages, phones calls, voicemails, images, browsing history and more contained on a smart phone chip.

KrolLDiscovery on the ILTA Blog

KrolLDiscovery computer forensic expert Jason Bergerson recently explained how Cellebrite assists in mobile device examinations. Appearing on the International Legal Technology Association (ILTA) blog, Mobile Phone Forensics: Understanding Cellebrite Extraction Reports answers these questions:

  • What processes and tools are used to investigate mobile devices?
  • What limitations exist when extracting data from a mobile device?
  • What are the common reports generated by Cellebrite?
  • How are these reports leveraged by a forensic investigator?

To shine light on mobile device discovery and view a sample Cellebrite report, read Jason Bergerson’s ILTA blog post: Mobile Phone Forensics: Understanding Cellebrite Extraction Reports.

The Results are In: Sixth Annual Best of the National Law Journal Survey

“We are honored to be chosen as a leading ediscovery provider in so many service and technology categories by National Law Journal readers.” Chris Weiler, CEO of KrolLDiscovery.

For the last six years, the National Law Journal (NLJ) has conducted a survey asking its readers to rank top providers in the legal marketplace. From data, research and technology to finance, expert witness and outsourced services, this survey highlights the businesses and individuals seen as the best in the industry. In all, the legal community cast over 4,500 votes to select the 2017 Best of The National Law Journal winners.

Given the collective opinions of thousands and the esteem of this national survey, KrolLDiscovery is honored to receive 10 awards, including four top honors, in this year’s survey. Specifically, KrolLDiscovery took home the gold award in the following categories:

  • Managed Ediscovery & Litigation Support Service Provider
  • Managed Document Review Services
  • Predictive Coding Ediscovery Solution
  • Data Recovery Solution Provider

Additionally, the company received silver awards in four categories:

  • End-to-End Litigation Consulting Firm
  • Technology Assisted Review Ediscovery Solution
  • Data & Technology Management Ediscovery Provider
  • Online Review Platform

Third-place honors include:

  • End-to-End Ediscovery Provider
  • Case Management Software to Law Firms

It’s great to know that all of the hard work of LDiscovery and Kroll Ontrack – now together as KrolLDiscovery – was recognized by NLJ readers. Learn more about all of KrolLDiscovery’s innovative technology and best-in-class services to support litigation, investigation, compliance and recovery from data loss. And, thanks to everyone that voted!

Corporate Counsel: Watch These 5 Ediscovery Trends in 2017

If you are in-house counsel, you need to be in-the-know when it comes to ediscovery. 

As amendments to the Federal Rules of Civil Procedure (FRCP) take hold, 2016 saw major changes in ediscovery standards and 2017 will build on this momentum. In the upcoming months, expect courts to continue to define proportionality, embrace technology and become less forgiving of attorneys who lag behind and use outdated rules. Recently, I had the opportunity to publish an article in Today’s General Counsel. Ediscovery Trends to Watch in 2017 discusses the weighty ediscovery issues that in-house counsel must address throughout this year.

  1. Cooperation is expected. In 2016, court decisions made it clear that under amended FRCP Rule 26, it is the parties, not the courts, who need to manage discovery. Without cooperation, courts quickly return discovery disputes back to the parties for resolution. In-house counsel can reduce their costs by addressing discovery issues upfront with their opponents and avoiding costly court hearings and irate judges.
  1. Proportionality is key. Perhaps the biggest change to the discovery rules was a new requirement for discovery to be “proportional to the needs of the case.” In-house counsel must ensure that their discovery requests are specific and add value to their case in relation to the accompanying expense.
  1. Be prepared to defend or refute costs. Under the proportionality doctrine, courts look closely at the balance between benefit and burden. Requesting parties should be prepared to foot the bill for costly discovery if a greater benefit is not illuminated. When refuting a request as too burdensome, be ready to argue an imbalance with the benefit and suggest shifting the cost to the requesting party.
  1. Accountability matters when spoliation occurs. Under amended FRCP Rule 37(e), when a party claims lost or damaged evidence, courts will not find spoliation unless there was an “intent to deprive the other party.” However, in-house counsel must be prepared to explain “reasonable steps” taken to preserve evidence and prove that it cannot be reproduced in another format.
  1. TAR is the new norm. Savvy counsel will leverage predictive coding and Technology Assisted Review (TAR) to increase document review efficiencies and reduce costs. 2017 will likely see additional commentary from the bench on the use of TAR and counsel must be ready.

Read the full article, Ediscovery Trends to Watch in 2017, to grasp the full picture of what’s to come in ediscovery this year.

March 2017 Ediscovery Case Summaries

Judge Peck Has Had Enough of “Meaningless Boilerplate Responses”
Fischer v. Forrest, 2017 U.S. Dist. LEXIS 28102 (S.D.N.Y. Feb. 28, 2017)

“Unusually Deplorable” Conduct Costs Plaintiff $7 Million in Sanctions
Shawe v. Elting, 2017 Del. LEXIS 61 (Del. Feb. 13, 2017)

Ignorance of the Technology is No Excuse; Businesses Have a Duty to Ensure Confidential Information Cannot be Accessed
Harleysville Ins. Co. v. Holding Funeral Home, Inc., 2017 U.S. Dist. LEXIS 18714 (W.D. Va. Feb. 9, 2017)

California Department of Education Gets Schooled in Ediscovery Production Formats
Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ., 2017 U.S. Dist. LEXIS 14983 (E.D. Cal. Feb. 1, 2017)

Court Finds That “Form Over Substance” Does Not Satisfy Motion to Compel Production of ESI
Excel Enters. v. Winona PVD Coatings, 2017 U.S. Dist. LEXIS 22932 (N.D. Ind. Feb. 17, 2017)

The Luck of the Irish…and Predictive Coding

On this St. Patrick’s Day, it’s opportune to revisit a prominent Irish judicial opinion – in fact, the first known judicial opinion in Europe to endorse predictive coding.

In the spring of 2015, Ireland embraced predictive coding in Irish Bank Resolution Corporation Ltd v. Quinn [2015] IEHC 175, a case holding that, in the discovery of large data sets, technology assisted review (TAR) using predictive coding is at least as accurate as, and probably more accurate than, the manual or linear method of identifying relevant documents.

The judgment is a great read for predictive coding pundits and a shining endorsement of the potential benefits of this technology. Specifically, the court held that:

  • The rules of court in Ireland do not require a manual document review to be carried out;
  • The evidence establishes that in discovery of large data sets, TAR using predictive coding is at least as accurate as, and probably more accurate than, the manual or linear method in identifying relevant documents;
  • As TAR combines man and machine, the process must contain appropriate checks and balances which render each stage capable of independent verification. The parties need to agree to these;
  • Provided the process has sufficient transparency, TAR using predictive coding discharges a party’s discovery obligations;
  • Predictive coding will save time and money if used to refine a data set and to limit the pool of documents to be manually reviewed. It was projected that 10% of the 680,809 documents would need to be manually reviewed after employing predictive coding, as compared to the traditional linear review estimate that required a team of 10 experienced reviewers, a nine month time frame and a cost of two million Euros; and
  • Parties should first agree to the use of predictive coding, run agreed upon keyword searches to initially refine the data set and then use predictive coding subject to agreed-upon checks and balances. Documents suggested by the software as being potentially relevant should then be reviewed manually by a human review team.

The ruling addressed major concerns expressed about predictive coding and sought to sway the skeptics. It unequivocally stated that predictive coding will save time and money. Although there is no specific reference to proportionality in Irish law, the judgment stated that cost should not be a barrier on access to justice.

The Irish opinion relied significantly on Judge Peck’s Da Silva Moore opinion, setting the predictive coding tone in the United States in 2012. A year after Ireland’s Quinn opinion, the UK would celebrate its first judicial opinion referencing predictive coding when the English High Court issued Pyrrho Investments Ltd. v. MWB Property Ltd. [2016] EWHC 256 (Ch). In that case, Master Matthews estimated that predictive coding would offer significant cost savings and that the possible disclosure of over two million documents done via traditional manual review would be disproportionate and “unreasonable.” Late in 2016, Australia joined the list of countries tackling predictive coding issues when Justice Vickery from the Supreme Court of the State of Victoria issued a key opinion in McConnell Dowell Constructors v. Santam.

As we continue through 2017, what country will be next to focus on predictive coding? Don’t miss any development; subscribe to KrolLDiscovery’s weekly email updates.

 
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