All posts tagged Kroll Ontrack

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.

Mobile Data Extraction: A Combination of Wizardry, Genius and Magic

In early February, KrolLDiscovery sponsored a Legaltech educational session focused on mobile devices and extracting the data contained therein. You need not be a computer wizard to appreciate the volumes of relevant data housed on the mobile device in your hand; however, extracting that data does take a spark of genius. The standards and technology for extracting mobile device data are still progressing, variable and slightly confusing.

The Legaltech panel assembled to discuss this very topic included the following mobile device wizards:

  • Michael Burg, corporate counsel for DISH Network,
  • Clifford Nichols, senior counsel for Day Pitney,
  • Rich Robinson, ediscovery and information manager for JCPenney, and
  • Jason Bergerson, director of consulting operations for KrolLDiscovery.

The panel focused on four key topics:

  • How mobile phones and applications differ across device types
  • How to get access to mobile device data (or try to prevent collection from mobile devices in the first place)
  • How to collect and extract data once you have access
  • How to develop findings from the reporting and information you attain

A Law.com journalist in the audience memorialized some of the panelists’ remarks and advice. Take time to read the article “Mobile Data Extraction 101: How to Deal With Complex Mobile Data Structuring” to increase your own mobile forensics magic skills.

Canada: A Close-knit Ediscovery Community, Continuously Embracing New Technology

In 2017, KrolLDiscovery will be diving deep into ediscovery practices around the world. Tour with us as we explore data collection, privacy, proportionality and production practices in the Americas, EMEA and APAC.

A couple weeks ago, we travelled to the Land Down Under to learn about predictive coding practices in Australia. Our next stop: Canada, where we find that Canada is leading the way on cooperative ediscovery.

What role does ediscovery technology play in Canadian litigation matters?

Ediscovery practices in Canada closely align to analogous processes, principles and goals in the United States and the United Kingdom. For example, Canadian parties and their counsel are seeking to collect, process, review and produce electronic documents as quickly and efficiently as possible. To achieve that goal, many law firms have implemented in-house ediscovery technologies to be able to support their clients’ litigation needs. Some firms and corporations, on the other hand, also take advantage of the close-knit ediscovery community in Canada and choose to work with an ediscovery provider in a managed services capacity. Akin to the United States, many law firms are continuously re-evaluating current technologies and looking for new solutions as the cloud opens new avenues for conducting ediscovery faster and possibly cheaper without sacrificing security.

What is unique about ediscovery in Canada?

In Canada there is not a large body of ediscovery case law like in the United States or even the United Kingdom. In fact, a prominent judicial opinion referencing predictive coding or Technology Assisted Review has yet to be handed down. Instead, legal teams rely on practices and guidelines such as those found in The Sedona Canada Principles or Ontario Rules of Civil Procedure 29.1.03. Furthermore, the Ontario Ediscovery Implementation Committee (EIC) released a series of model documents to help guide litigants through the ediscovery process, including a Discovery Agreement, Preservation Agreement, Checklist for Preparing a Discovery Plan and a Proportionality Chart.

Specifically, when talking with Canadian ediscovery gurus, there is a general sense that Canada leads the global ediscovery community in terms of cooperation and proportionality, with many practitioners stating that developing ediscovery parameters with opposing counsel or regulators is simply more collaborative when compared to ediscovery matters in other jurisdictions.

What are some obstacles to ediscovery in Canada?

In some aspects of legal technology, the Canadian legal system is still playing catch-up, especially when it comes to the technically complex areas of ediscovery, trial presentation or technology in the courtroom. For example, there are factions of early-adopters embracing predictive coding in document review. However, despite the well-established benefits, the majority of legal teams are reluctant to leverage artificial intelligence to categorize documents.

Over the next few years, document review workflows will modernize as additional Canadian legal teams become more experienced with new technology such as predictive coding. This will be increasingly important in the antitrust practice area, where regulators are starting to adopt broader policies similar to U.S. antitrust protocols. The need for predictive coding will increase if parties in antitrust matters need to sift through additional volumes of documents.

How often do Canadian legal teams transfer data to the United States or Europe for ediscovery?

Canadian legal teams are continuously evaluating the needs of the specific matter and comparing risks and benefits of conducting ediscovery in Canada versus elsewhere. Many corporations in Canada have U.S. offices; so often, Canadian litigation has a U.S. based component and ediscovery documents easily cross borders. However, sometimes legal teams are reluctant to transfer data to the United States for ediscovery processing, hosting and review because of the potential impact on other pending cases or the importance of privacy in the matter. Legal teams in Canada understand that ediscovery is available in the global marketplace and should the availability of technology, ability to deliver under tight time frames or need for a large pool of document reviewers demand resources outside of Canada, parties will consider transferring subsets of data to the United States or Europe.

How does language impact ediscovery in Canada?

Many cases contain documents in both English and French; accordingly, legal teams often require document review teams comprised of bilingual Canadian lawyers fluent in English and French. This sometimes drives up the costs associated with review, placing more importance on advanced search and analytics technologies that increase document review speeds and effectiveness.

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

Last Year’s Cases; This Year’s Practices

Last week I had the opportunity to speak at the February meeting of the Minnesota Association of Litigation Support Professionals chapter. About 50 people gathered for lunch and learning, sharing in a retrospective of ediscovery case law in 2016. This was a chance for me to “go deep” into the facts and holdings of some of the foremost judicial opinions in the past year and, for me personally, the experience was enjoyable. In full disclosure, I have been asked to speak at MALSP on this topic in years past; however, the assignment never grows monotonous. Each year there are always interesting and meaningful developments to discuss, with no shortage of captivating facts.

In addition to examining Bard, Gilead Sciences, CAT3 and Hyles, we talked about how the decisions of 2016 will shape ediscovery law and practices in 2017. There was great consensus that in 2016, courts and parties were finding their footing applying the 2015 FRCP amendments to ediscovery. In 2017, it is anticipated that courts will be off and running, digging into thornier issues as parties make stronger arguments for and against proportionality under Rule 26(b)(1) and sanctions under Rule 37(e). At the end of 2016, I published an article focused on both of these topics and more. As you prepare for ediscovery in 2017, be sure to take five minutes and read “How This Year’s Experience With the New Rules Will Shape Next Year’s Ediscovery.”

February 2017 Ediscovery Case Summaries

Court Narrows the Scope of Social Media Discovery
Scott v. United States Postal Serv., 2016 U.S. Dist. LEXIS 178702 (M.D. La. Dec. 27, 2016)

Court Imposes Sanctions for Failure to Preserve Phone Call Recordings
Sec. Alarm Fin. Enters., L.P. v. Alarm Protection Tech., LLC, No. 3:13-cv-00102-SLG, 2016 WL 7115911 (D. Alaska Dec. 6, 2016)

Court Delivers a Package of Proportionality and Cooperation in Class Action
Solo v. UPS Co., 2017 U.S. Dist. LEXIS 3275 (E.D. Mich. Jan. 10, 2017)

Court Schools Parties on Duty to Preserve and Finds No Act of Spoliation
Archer v. York City Sch. Dist., 2016 U.S. Dist. LEXIS 178969 (M.D. Pa. Dec. 28, 2016)

“Mere Speculation” of Spoliation is Not Enough to Issue Sanctions Under Rule 37(e)
HCC Ins. Holdings, Inc. v. Flowers, 2017 U.S. Dist. LEXIS 12120 (N.D. Ga. Jan. 30, 2017)

Legaltech New York 2017 is Here!

For those of us in the legal technology realm, next week is the most anticipated week of the year: Legaltech New York (LTNY). While it has a new name, “Legal Week, the Experience,” it will likely be the same, familiar LTNY with its informative sessions, reunion-like networking and enjoyable celebrations.

Just as in past years, Kroll Ontrack (an LDiscovery company) will be at LTNY en masse. We are excited to once again send a contingent of people to brush up on their CLEs and RCEs (Relativity Continuing Education credits), pass out trinkets at our popular booth and conduct enlightening sessions. As you are building your itinerary for the show, make sure to include the three sessions in Kroll Ontrack’s “Ediscovery Everywhere” educational track.

  • Cathleen Peterson will be presenting the session 3 Situations, 2 Lawyers, 1 Corporation: Using Relativity in a Data Breach, an Investigation and Litigation. Brian Hengesbaugh from Baker Mackenzie will join Cathleen in presenting this session. Learn how Relativity works in a real world situation and how a fictitious corporation uses new document review work streams to assist with three different types of hypothetical legal matters—a data breach response, an investigation and litigation.
  • Jason Bergerson will be moderating the session Mobile Device Investigations: From Android to iPhone and Back. Check out this session to learn from a mobile forensics expert, a law firm attorney and in-house legal teams about how mobile data might be helpful during litigation and how it differs from other ESI. Joining Jason on this panel will be: Rich Robinson, Ediscovery & Information Manager at JCPenney, Michael J. Burg, Corporate Counsel at DISH Network, and Clifford E. Nichols, Senior Counsel at Day Pitney.
  • Tom Barce will be moderating the session Information Governance – Hindsight is 20/20: A Moderated Debate. Attend this panel featuring speakers Patrick J. Burke, Seyfarth Shaw, Ben Hubble, Wendy’s, and Jessica Escalera, Barclays, to watch the information governance showdown as the panelists debate the merits of taking a reactive approach versus applying a proactive model in a global ediscovery matter.

Learn more about everything LDiscovery and Kroll Ontrack have planned for the show by visiting our Legaltech events page. Also, before you head out next week, make sure you stay connected with your mobile device: Search for “Legaltech” in your app-store and download the free app!

January 2017 Ediscovery Case Summaries

Failure to Preserve Interactive Website Data Held Insufficient to Impose Sanctions Under Rule 37(e)
FTC v. Directv, Inc., 2016 U.S. Dist. LEXIS 176873 (N.D. Cal. Dec. 21, 2016)

Jury to Decide Issue of Intent for Spoliation
Cahill v. Dart, 2016 U.S. Dist. Lexis 166831 (N.D. Ill. Dec. 2, 2016)

Australian Court Takes Predictive Coding Down Under
McConnell Dowell Constructors (Aust) Pty Ltd v. Santam Ltd & Ors (No 1),
[2016] VSC 734 (Dec. 2, 2016)

Illinois State Court Leverages Proportionality Standards in FRCP 26(b)(1) to Determine if Forensic Imaging is too Intrusive
Carlson v. Jerousek, 2016 IL App (2d) 151248 (Ill. App. Ct. 2d Dist. 2016)

Kansas Court Rejects Proportionality Arguments and Boilerplate Objections
Duffy v. Lawrence Mem. Hosp., 2016 U.S. Dist. LEXIS 176848 (D. Kan. Dec. 21, 2016)

Looking Back, Peering Forward: The Top Ediscovery Cases of 2016

The 2015 FRCP amendments are now one year old and there are a full twelve months of case law to guide practitioners through the contours of the new rules. The last year in case law has seen stark developments on how courts interpret the proportionality, levy sanctions, utilize new technologies and reconsider costs to make ediscovery “just, speedy and inexpensive.”

Our webinar, The Top Ediscovery Cases of 2016, updates practitioners on the ediscovery highlights of the past year and features three ediscovery experts, offering the perspective of both counsel and judges:

  • Patrick Oot, Shook, Hardy & Bacon
  • Magistrate Judge Hildy Bowbeer, District of Minnesota
  • Magistrate Judge David J. Waxse, District of Kansas

Rule 26(b)(1): Proportionality Today

The webinar first discusses that the most drastic change of Rule 26(b)(1) is the essential change of mindset. The case Gilead Scis. v. Merck is used as an example to illustrate the place of proportionality in ediscovery. Gilead reveals the required sound reasoning both a party requesting discovery and a party objecting to discovery need to employ. In other words, “now the scope of discovery is neither broad nor liberal…it is proportional.” Attorneys that ignore proportionality do so at their own risk: the case Fulton v. Livingston Fin. is also used to show how the court imposed sanctions on a litigant who made arguments based on the old rule.

Rule 37(e): Sanctions Illustrated

The webinar then discusses the scope of Rule 37(e) and addresses the need to utilize “reasonable steps” to prevent sanctions, as this rule was formed with the intent of curtailing excessive ESI storage. The webinar uses the case Marten Transp. v. Plattform Adver. to show that the scope of a preservation duty is focused: courts expect “reasonable steps,” not perfection. The case Living Color is also used to highlight the fact that parties cannot simply make conclusory statements about prejudice resulting from ESI spoliation without any evidence and expect the court to levy sanctions.

One reason for excessive ediscovery costs is a cultural one and the webinar highlights that Rule 37(e) fits with Rule 1, which was amended for this reason. Cooperation between litigants is a key component of successful preservation, and a panelist observed, “Lawyers too often ignore their obligation to cooperate.”

Predictive Coding: New Frontiers

There are two myths underlying document review discussed in the webinar. The first is the myth that a response to discovery needs to be perfect when in fact the rules call only for “reasonable inquiry.” The second myth is that human review is the best way to ensure responsive documents are not missed when manual review has been shown to be imperfect. In this webinar, the discussion of these two myths sets the stage for asserting that predictive coding technology can be utilized to make ediscovery a more efficient practice.

2017: The Year of Ediscovery

In 2017, one common wish is that attorneys become better educated in ediscovery and the new technologies available. Courts will continue to dissect what constitutes reasonable steps for ESI preservation and also provide additional guidance for when discovery is proportional. Even though counsel may not be proficient in proportionality, the webinar concludes by stating that judges “recognize proportionality when they see it.”

With new opinions continuing to emerge, we expect the ediscovery landscape in 2017 to continue to evolve. Watch this webinar, The Top Ediscovery Cases of 2016, to learn more about the impact of the 2015 FRCP amendments and predictions for the upcoming year.

2017: The Year of Proportionality

Editor’s note: this article originally appeared in Legaltech News.

Of the many changes that emerged from the 2015 FRCP amendments, none has spurred uncertainty within the legal community as much as Rule 26(b)(1) and its emphasis on proportionality. Judges and counsel alike have wrestled to apply the new rule, leaving 2016 case law rife with complex, fact-based interpretations. Even the Sedona Conference issued a publication addressing this issue in their recent publication, Commentary on Proportionality in Electronic Discovery (with public comments due Jan. 31, 2017). As we head into 2017, one conclusion is certain: Proportionality is here to stay.

What Is Proportionality?

Rule 26(b)(1) provides a list of factors, requiring parties to take into account “the amount in controversy,” “the parties’ resources” and “the importance of the issues at stake in the action,” among other factors. At its core, proportionality is about balance, ensuring that parties receive the information they need to plead their claims and argue their defenses, while curtailing expensive and time-consuming waste. While the concept of proportionality seems simple enough, applying it can be difficult for parties.

One mistake counsel make is to look at the factors involving monetary expenditures and stop their analysis there. However, as the Sedona Conference Publication indicates, this is just the beginning of the analysis. Courts care about the claims at issue, and they still have the same commitment to ensuring that parties will have the relevant information that they need. Relevance still matters, but it no longer stands alone. Courts are now more likely to say “no” to requests that are designed to burden parties and have relatively little value.

Another mistake that counsel make is to tell a judge that a discovery request is not proportional but then offer no suggestion as to how a request can be altered to make it so. If a discovery request is too broad, offer a suggestion as to how it can be narrowed, and be prepared to show the court documentation for costs involved. Where scope of discovery is in dispute, show the court a willingness to cooperate and be in contact with the opposing party when issues arise, rather than filing a motion to compel at the first sign of conflict. In 2017, more Rule 26(b)(1) opinions will have judges admonishing parties for failing to attempt to cooperate with each other. In fact, in the latter part of 2016, judges were increasingly reminding parties that the court is a last resort—not the first—when it comes to managing scope of discovery.

What We Have Learned in 2016

A blanket rule cannot be crafted to determine whether a request is proportional. In many of the Rule 26(b)(1) opinions in 2016, the courts took each specific discovery request and applied proportionality to the facts at hand. While judges might not be able to define proportionality, they recognize it when it is presented to them. When the proportionality analysis is so fact-specific, the job of counsel is to demonstrate to a judge how proportionality can work in the case. In a world buried in data, to be successful in gaining access to the most critical information, counsel must see proportionality as a tool and not a constraint.

In 2017, the expectation will be even higher for counsel to have adopted and be proficient with the new rules. Judges will have less and less patience for those who still apply the old “reasonably-calculated” language of Rule 26(b)(1). While in 2016, some courts themselves were still applying the old standard, in 2017, courts will expect parties to have fully acclimated themselves to the new rule. Courts are getting tired of paring down broad discovery requests and instead are sending the dispute back to the parties with orders to attempt to resolve the issue themselves.

Before the 2015 amendments took effect, the legal community was unsure whether the new emphasis on proportionality meant a material change in ediscovery. The opinions of 2016 have shown that judges have more than wrestled with proportionality; they have embraced it. Gone are the days in which parties can ask for everything and, frankly, strategic litigators know they do not want to be overwhelmed with all that useless data. 2017 will be the year of proportionality, and it is up to counsel to keep pace.

 

 
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