All posts tagged preservation

Ediscovery Data Collection: Fact v. Fiction

Getting off to a good start in an ediscovery project or computer forensics investigation is paramount. This places extreme scrutiny on the left-hand EDRM activities – namely, identification, preservation and data collection. However, developing the proper collection strategy in a specific matter is anything but turnkey. There are a number of reasonable methods for collecting data, which are often dictated by the facts and circumstances of the case. If you are new to capturing data, or a veteran with many projects under your belt, take five minutes to brush up on these fallacies and facts around data collection.

1. Fiction: Bit-by-bit imaging is required for a forensically sound collection.
Fact: As discussed by Nick Pietig, one of Kroll Ontrack’s consulting professionals, data needs to be collected with an eye toward preventing spoliation, while preserving metadata and ensuring defensibility. In most cases, a full forensic image is not needed and an active data capture will suffice for civil litigation. However, some matters (such as employment cases where a key player is suspected of intentionally deleting information) and some organizations (such as those in regulated industries or with global operations) prefer bit-by-bit imaging, because it is perceived to be the “safest” collection method, capable of standing up to rigorous scrutiny. Despite the type of data collection required, every collection must be forensically sound – meaning that all the files are preserved, along with the associated metadata necessary to prove that the information is authentic. To learn more, check out Nick’s data collection video.

2. Fiction: The volume of data collected is decreasing because of better targeting of key custodians.
Fact: According to the 2015 edition of Kroll Ontrack’s “Pulse Benchmarks,” the average number of custodians in a data collection is decreasing, from 65 in 2008 to 16 in 2014. In no small part, this trend is likely due to the fact that cost-conscious litigants are leveraging new collection methods and advanced pre-filtering technologies, combined with more effective custodian interviews. However, the overall volume of data in a collection is relatively stable or even slightly increasing, with 444 GBs collected on average in 2008 and 482 GBs collected on average in 2014. Even though parties are collecting data more diligently and custodian counts per matter continue to decline, big data is driving up data volumes per custodian, resulting in increased data volumes per case.

3. Fiction: Once you collect data, it must be transported for further processing or investigation offsite.
Fact: In many situations, after data is collected, it is transported to some other location for further analysis. However, there are scenarios where data cannot leave its premise. For example, some organizations, under certain circumstances, request that collection and filtering efforts be completed onsite to prevent the transport of irrelevant and sensitive data. In these situations, technology has evolved to collect, filter and process data onsite, so it never leaves the premises. Find out more about this mobile technology by reading a recent mobile discovery case study.

4. Fiction: Collection processes, once proven, need never change.
Fact: Because security measures, operating systems and devices are constantly evolving, collection processes also need to continually adapt. For example, new encryption protocols across all types of devices – from mobile devices to the cloud – are resulting in freshened collection protocols. As such, collection professionals need to research new techniques, investigate tools and perform tests to ensure the collection will accurately capture targeted data. If you are interested in learning more, don’t miss Kroll Ontrack’s November 16 webinar, Mobile Device Investigations: From Android to iPhone and Back, where Jason Bergerson will boost your understanding of how to leverage data from mobile devices in a forensically-sound manner.

6 Months of Case Law Under the New FRCP

Six months have passed since the December 1, 2015 amendments to the Federal Rules of Civil Procedure (FRCP) took effect. What has been the impact of the new rules on civil litigation and discovery?

In particular, Rule 26(b)(1) and Rule 37(e) have attracted a sizeable amount of jurisprudence, as both courts and parties grapple with the applications of these new rules. To aid today’s practitioner, Kroll Ontrack analyzed the most significant judicial opinions of the last six months relating to Rule 26(b)(1) and Rule 37(e).

How have the amendments impacted discovery? Download the FRCP case law digest.

Proportionality Reigns Supreme

In the first six months since the 2015 amendment to Rule 26(b)(1), courts have struggled with the removal of the “reasonably calculated” language, and the additional emphasis on proportionality. Pioneering lawsuits have fleshed out the most pressing questions such as what factors matter the most when arguing proportionality? In what way should a party object to discovery under the new rules? Looking at the totality of the case law, one new theme has emerged—there is no substitute for specificity. Both parties are required to state with specificity why they are requesting or objecting to discovery.

Safe Harbors for “Reasonable Steps”

In the past, organizations have been pressured to preserve massive amounts of ESI at tremendous expense. The 2015 amendments have attempted to require only “reasonable steps” be taken to preserve the information. But is it actually advancing adequate data preservation causes? What constitutes “reasonable steps” under the new FRCP amendments? If evidence was preserved and then lost, what level of intent is needed before a court will impose sanctions?

Each of these questions are addressed in Kroll Ontrack’s case summary digest, with the most relevant case law opinions highlighting the expectations from the courts in the first six months since the 2015 FRCP amendments. Download a copy of the FRCP case law digest by Kroll Ontrack, which not only summarizes key findings but also contains a circuit-by-circuit list of judicial opinions referencing FRCP amendments to Rule 26(b)(1) and Rule 37(e).

Still catching up on the 2015 amendments? Download a copy of Kroll Ontrack’s 2015 FRCP Amendments guidebook, which contains each of the December 1, 2015 amendments and full text of the Advisory Committee notes.

A Quick and Dirty Guide to Ediscovery Project Management (Part 2)

Ediscovery Project Management - EDRM

In a complicated litigation landscape, it’s a relief that ediscovery project management (EDPM) and the Electronic Discovery Reference Model (EDRM) fit together. An effective project manager will consider each stage of the EDRM, from identification to production, when creating the perfect ediscovery game plan for the given set of circumstances. Let’s take a look at the most important stages of the EDRM from a project management standpoint.


Project managers are key players in coordinating the effort to identify all data that may be potentially relevant to a specific matter. Ask specific questions of document custodians and walk through a comprehensive list of business and personal data sources – if a device has memory, keep it in your purview. In Coleman (Parent) Holdings v. Morgan Stanley, a 2005 Florida case, Morgan Stanley was unaware of where it stored its electronic data, and was thus sanctioned for discovery abuses. Morgan Stanley faced compensatory and punitive damages to the tune of $1.4 billion. It’s an extreme example, but nonetheless a pertinent one that shows what effective ediscovery project management should avoid.

 Collection & Preservation

This stage of the EDRM is the origin of many “gotchas” in the ediscovery process. It is certainly where most judicial sanctions stem from in the ediscovery realm. Project managers can help guide their organization and document custodians to a successful avoidance of preservation sanctions by ensuring that they know and comply with their obligations pertaining to a litigation hold. They may also play a key role in implementing and managing the organization’s overall retention plan before and during litigation.

 Early Data Assessment (EDA)

By this point in the ediscovery process, the body of knowledge that project managers have gained in coordinating the matter may qualify them as a subject matter expert and an invaluable resource to the legal analysis team. During the EDA process, ED project managers wear many hats and perform many functions. They often work with attorneys, other litigation support professionals and third party providers to separate data between critical and non-critical data groups, narrow the number of key players/custodians, test key search terms,  and identify critical case arguments.

 Review/Technology-assisted Review

Technology-assisted Review (TAR) is one of the most cost-effective, consistent and accurate methods by which to distill the mountains of data inevitably unearthed during major litigation or investigations. To connect back to the EDPM framework discussed in Part I of this post, project managers serve well to promote TAR when discussing process, budget and cost.


So, you’ve finally reached the glorious end of your ediscovery project – production! Project managers (depending on where they sit) function as a useful link between the organization, counsel and the third party ediscovery provider. Many ED project managers are responsible for actually creating and validating productions. They may also ensure that the finished product gets delivered promptly and in its entirety to the appropriate party(ies).

Learning to “Like” Social Media EDiscovery

There is no way around it—social media has become an integral part of our everyday communication. It is no longer just some fleeting trend among the cool and hip. The use of social media has increased exponentially in the past few years. Evidence? How about these numbers:

  • Facebook has exceeded one billion users
  • Twitter has more than 500 million users

Social media is also no longer limited to personal use. Approximately 80 percent of companies now use social media to market products and build consumer relationships. Not only is social media a staple in everyday communication, it is now smart business.

While “friending” and “tweeting” provide numerous benefits, legal professionals have been anxiously mulling over the numerous challenges of social media ediscovery. In 2012, issues related to privacy, discoverability, preservation, collection and authentication of such data permeate discussion amongst courts, litigators and commentators. Although governing standards have yet to emerge on these issues, expect best practices regarding social media to continue to evolve.

  • Discoverability –

    As demonstrated by E.E.O.C. v. Original Honeybaked Ham Co. of Georgia Inc.,[1] many courts have favored broad discovery. There, the court reasoned that social media data was the logical equivalent of an “everything about me” folder with a bevy of relevant information. However, other courts have rejected broad discovery of such data, finding that the Federal Rules do not grant a generalized right to rummage at will through information a person has limited from public view.[2]

  • Preservation and Collection –

    Due to the intricacies of social media electronically stored information (ESI), which is frequently changing and retained by the platform provider on remote servers, preservation is no easy task. Additionally, social media collection options such as taking screenshots and proxy monitoring are still rudimentary at best. Regardless of the method chosen, counsel must start early, obtain consent and request login information before collecting.  Counsel should also consider retaining an expert to avoid potential issues later on in the discovery process.

  • Authentication –

    The contents of these sites are not self-authenticating documents, so legal professionals often have to be proactive to ensure the account holder posted the relevant information. Best practices suggest that practitioners should collect as much evidence as possible—including subscriber reports from the service provider and relevant metadata—to resolve questions about ownership, access to the account and authorship of the post.

Practices and laws regarding social media ediscovery will remain in a constant state of change. Ignoring social media is no longer feasible, practical or defensible. At the end of the day, legal professionals must “follow” or “like” such change to stay ahead of the curve or at least ride the crest of the wave.

[1] 2012 WL 5430974 (D. Colo. Nov. 7, 2012)

[2] Tompkins v. Detroit Metro. Airport, 2012 WL 179320 (E.D. Mich. Jan. 18, 2012)

Ediscovery 2011: Gibson Dunn’s Mid-Year Ediscovery Update

Ediscovery 2011: Gibson Dunn’s Mid-Year Ediscovery Update

The paramount role ediscovery plays in modern litigation is thoroughly emphasized by the 2011 Mid-Year Ediscovery Update released by Gibson Dunn. This comprehensive analysis of court decisions and trends over the first half of 2011 provides a guide to where ediscovery has been and where it may continue to go. We have read through Gibson Dunn’s excellent report and include below the highlights that caught our eye.

Preservation and Legal Holds

Preservation continues to be the number one issue plaguing corporations and practitioners alike. This challenging concept was further complicated following Judge Scheindlin’s Pension Committee decision of 2010. Throughout 2011, courts struggled with tension arising from Scheindlin’s bright-line rule in Pension Committee as demonstrated by the number of courts – including in Judge Scheindlin’s own district – that declined to adopt this rule. For example, Magistrate Judge James Francis in Orbit One Communications, Inc. v. Numerex Corp., respectfully disagreed with the holding in Pension Committee and held that sanctions would not be warranted unless a party could prove relevance of the lost information.

While it appears that in some cases an oral notification may be sufficient, the best practice for companies and attorneys who find themselves confronted with the need to preserve information is to issue legal holds in writing. In a similar vein, courts are re-emphasizing that merely distributing a legal hold alone may not be sufficient preservation. Instead, attorneys should ensure compliance with the hold and take steps to facilitate preservation along the way.

Information Disclosure and Software

An additional topic covered by the report was the use of software and its impact in case law. As attorneys continue to shift their reliance to comprehensive software and solutions to aid them in the ediscovery process, courts continue to contemplate whether litigants have met the “reasonable steps” requirement to prevent the disclosure of privileged information pursuant to Federal Rule of Evidence 502(b). In Sidney v. Focused Retail Property I, LLC, the Northern District of Illinois cited to a 2010 case from its district, Kmart Corp. v. Footstar, Inc., in which the court found he party failed to take reasonable steps to prevent disclosure by failing to mention whether software was used to prevent disclosure of privileged documents. Reputable ediscovery software can cut costs, save time, reduce headaches – especially associated with document review – and provide defensibility to your process and actions.

Keeping the (Good) Faith: FRCP 37, Cooperation and Karma

The 10th Circuit Appeals Court recently issued an opinion, Lee v. Max International, LLC, that imparts valuable insight regarding the cause and effect of poor discovery behavior. In this case, the plaintiffs committed three repeated discovery violations that compelled the court to write, “[b]ut there is such thing as discovery karma. Discovery misconduct often may be seen as tactically advantageous at first. But just as our good and bad deeds eventually tend to catch up with us, so do discovery machinations.” The court affirmed the lower court’s dismissal of the case as an appropriate sanction. Considering the rise of sanctions cases identified in the Gibson Dunn report, parties must continue to educate themselves regarding ediscovery best practices and implement strategies to approach discovery efficiently and cost-effectively. Otherwise, you risk incurring sanctions that may impact you monetarily or even result in the dismissal of your case – before it even gets to the merits of the underlying litigation.

The Report also highlighted the growing trend within the judiciary to emphasize the importance of cooperation in the ediscovery process. Courts are increasingly endorsing the Sedona Conference® Cooperation Proclamation and are urging practitioners (and sanctioning them if they do not comply) to meet and confer in good faith to resolve disputes. For example, the District of Puerto Rico recently concluded an opinion that followed the filing of over 25 motions related to the discovery process with a call to litigants and the general Bar to adopt civility as a standard of professional conduct, noting that it the concept of civility is indeed not in direct contravention with zealous advocacy and that by adopting this standard, litigants can provide a better service to their clients. Baez-Eliza v. Instituto Psicoterapeutico de Puerto Rico, 2011 WL 2413051 (D. Puerto Rico June 16, 2011).

The Gibson Dunn report covered many other areas that are important in terms of case law and the ediscovery process. We here at Kroll Ontrack urge everyone involved in ediscovery to continue reading resources such as the report and resources found on our website in order to further cultivate their ediscovery knowledge. Once you better understand the case law, processes and best practices behind this exciting area of the law, you will be better equipped to navigate the murky waters effectively.

Case Law: Offenback v. L.M. Bowman, Inc

Case Law

Court Chides Plaintiff for Not Reviewing Own Facebook Account for Responsive Information

Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011). In this personal injury case, the defendants requested an in camera review of the plaintiff’s Facebook and MySpace accounts, arguing the plaintiff’s claims of physical and psychological impairment made relevant any evidence that documented the plaintiff’s social life, physical capabilities and emotional state of mind. To the extent that such information was relevant under Fed.R.Civ.P. 26, the plaintiff agreed that limited public information on his Facebook account was discoverable and provided the password to the court (the plaintiff claimed he could no longer access his MySpace account). Upon review, the court agreed to the relevance of a limited amount of photographs and postings that reflected the plaintiff continued to ride motorcycles, went hunting and rode a mule, and ordered production of this information. In a closing footnote, the court stated it was confused as to why intervention was necessary since the parties agreed that at least some of the information was relevant. The court further noted the plaintiff should have reviewed his own Facebook account for potentially responsive information, only soliciting the court’s assistance if a dispute remained.


The discoverability of social media continues to be a popular topic throughout the industry. Now we want to know – what is your company or firm doing to address social media? Have you encountered the need to preserve, review and produce this evidence?

Case Law: Haraburda v. Arcelor Mittal USA, Inc

Case Law

Court Orders Defendants to Issue Litigation Hold Before Rule 26(f) Conference

Haraburda v. Arcelor Mittal USA, Inc., 2011 WL 2600756 (N.D. Ind. June 28, 2011). In this employment discrimination suit, the plaintiff requested the court order the defendant to preserve e-mail evidence, claiming the defendant previously deleted e-mails from the plaintiff’s account without her permission and refused to issue a litigation hold prior to the Fed.R.Civ.P. 26(f) meet and confer. The defendant argued the plaintiff’s request was premature as Rule 26(d)(1) prohibited a party from seeking discovery before the Rule 26(f) conference. Disagreeing with the defendant’s argument, the court noted Rule 26(d)(1) prohibited requesting production – not compelling preservation – and stated that ruling to the contrary would leave a party with knowledge of an intent to destroy evidence without a remedy. Accordingly, the court found the plaintiff could suffer measurable prejudice based on the suit’s heavy reliance on e-mails if evidence was destroyed and ordered the defendant to implement a litigation hold.


Although the defendant put forth a novel argument, it failed to acknowledge the obligations each party has to proactively preserve evidence upon the reasonable anticipation of litigation. As the Sedona Conference® notes, the duty to preserve evidence “includes an obligation to identify, locate, and maintain, information that is relevant to specific, predictable, and identifiable litigation”. The Sedona Conference®, Commentary on Legal Holds: The Trigger and the Process.

However, the issue of when the duty actually arises is often a challenging one as different courts have found various triggers to be applicable. Generally, courts recognize that the “mere possibility of litigation” does not trigger the duty to preserve because litigation is “an ever-present possibility” in modern society. Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc.

Recently, the District of Colorado determined that the defendant’s duty to preserve evidence triggered when the plaintiff filed a formal complaint at work (racial discrimination lawsuit), which put the defendant on notice to preserve all existing and future video that included the plaintiff. The defendant failed to do so, and the court found the plaintiff was prejudiced by the defendant’s willful destruction of video recordings. Accordingly, the court issued both mandatory and permissive adverse inference instructions as well as attorney fees relating to the spoliation motion. McCargo v. Texas Roadhouse, Inc., 2011 WL 1638992 (D. Colo. May 2, 2011). In the 2009 case, Goodman v. Praxair Services, Inc., the District of Maryland concluded that the defendant’s duty to preserve triggered following receipt of a letter informing the defendant the plaintiff had consulted attorneys. Further, a ruling from the Southern District of New York found the duty to preserve arose no later than the lawsuit’s filing. Green v. McClendon.

As demonstrated by the sampling of cases above (which by no means present an exhaustive list of possibilities), it is no wonder parties are confused as to when the duty to preserve arises. It is better for parties to be safe than sorry by implementing a written legal hold sooner rather than later if litigation appears to be on the horizon. To increase defensibility, parties should maintain detailed notes of the preservation protocol followed, which includes when the hold was issued, what details were included in the hold, to whom the hold was issued and the efforts taken to continually monitor compliance.

When Duty Calls and When It Doesn’t – Revisiting the Duty to Preserve

When Duty Calls and When It Doesn’t – Revisiting the Duty to Preserve

If anyone doubts that those who don’t learn history are doomed to repeat it, maybe ediscovery case law can change your mind – a great place to start is with cases dealing with spoliation and failure to preserve relevant evidence. Since the Zubulake decisions established that a duty to preserve arises when a party reasonably anticipates litigation, the “duty to preserve” issue has been litigated too many times to count. In addition to burdening parties and the court systems with the extra time and costs it takes to litigate discovery related issues, these types of cases all too often result in sanctions against the duty-breaching party. Reasons for failing to preserve ESI are varied, but because it is an undying source of litigation, it is certainly worthwhile revisiting exactly what the standard requires as well as a recent decision interpreting its nuances.

Zubulake established that the duty to preserve electronic evidence begins when a party “reasonably foresees” that the evidence may be needed in litigation. In discovery, evidence is a broad term, referring to anything that may be relevant to or probative of the issues in a case, regardless of whether it will ultimately be admissible in trial.

To Whom is the Duty Owed?

After Zubulake, many cases have sprung up applying and clarifying standards for spoliation sanctions across jurisdictions. Other recent cases have clarified when the duty to preserve attaches. For example, in In re Delta/AirTran Baggage Fee Antitrust Ligitation, 2011 WL 915322 (N.D. Ga. Feb. 22, 2011), the court clarified to whom the duty is owed: only to the specific party with whom litigation is anticipated. The court found that the defendant owed a preservation obligation to the Department of Justice (DOJ) pursuant to a Civil Investigative Demand. However, the defendant’s preservation obligation to the DOJ did not extend to the plaintiff who sought sanctions for failure to preserve in a case arising several months later against the same defendant. Even though relevant evidence might have been destroyed while the defendant’s obligation extended to the DOJ, the court denied the motion for sanctions because the DOJ had not filed a motion and the defendant’s duty to the plaintiff preserve ESI had not yet triggered despite general, industry-wide speculation of litigation against the company at the time.

Prudent & Preventative Planning

Even with Zubulake and subsequent cases, there may not be a bright-line moment in every [anticipated] case when the duty springs into existence. If a court later determines that a duty existed, however, it is too late to go back and pre-start data preservation activities. For that reason, it is of paramount importance to implement smart preservation practices (while simultaneously disposing of unnecessary/non-responsive data).

Proper conduct when a duty to preserve arises will not happen without proactive planning. In re Delta/AirTran Baggage hints at another tricky point as well. When multiple litigations are active, litigation holds may overlap concurrently. When a case concludes and a litigation hold may be lifted, it is important to verify whether data must still be preserved in the ongoing case. To this end, proactive planning will also help the organization track its information and know when a hold can be lifted.

The early stages of planning involve determining what data the company has and considering what type of data might be needed in future litigation. Secondly, it is necessary to learn and track where the data exists through data mapping. Decisions must be made regarding how long to keep different types of data, taking into consideration the organization’s needs with regard to business use as well as regulatory and legal requirements. A data retention/destruction policy and process should also be implemented. These steps will make it dramatically easier to identify and collect the relevant data once a specific instance of litigation is “reasonably anticipated” and the litigation hold is in place.

Case Law: Steuben Foods, Inc. v. Country Gourmet Foods, LLC

Case Law

Court Rejects Pension Committee Spoliation Inference and Declines to Authorize “Fishing Expedition”

Steuben Foods, Inc. v. Country Gourmet Foods, LLC, 2011 WL 1549450 (W.D.N.Y. Apr. 21, 2011). In this business litigation, the defendant sought spoliation sanctions for the plaintiff’s failure to implement a timely written litigation hold. Arguing that the plaintiff’s oral litigation hold was insufficient, the defendant cited three e-mails missing from the plaintiff’s production as evidence that spoliation of relevant documents had occurred. However, noting the record failed to reveal any relevant evidence had been destroyed or lost, the court rejected the defendant’s reliance on Pension Committee that the failure to implement a written litigation hold alone supported a presumption of spoliation. Instead, the court found that the relatively small size of the plaintiff could support its reliance on direct oral communication and that the substantial number of documents so far produced refuted an inference of spoliation. Finding all relevant documents had so far been produced, the court further declined to permit a “fishing expedition” of discovery into the plaintiff’s document preservation actions based on mere speculation.


This case is yet another decision issued on the ever-prevalent challenge of proper preservation protocol. We have covered numerous high-profile opinions on this blog and felt this case deserved attention based on its deviation away from the Pension Committee ruling. The court noted in this case that it is not bound by the Southern District of New York ruling and determined that the failure to issue a written litigation hold does not automatically result in the imposition of an adverse inference instruction.

As more courts in jurisdictions across the country issue opinions on preservation, it will likely further cloud the already murky waters. Indeed, through the opinions issued over the past year, practitioners and corporations may be even more confused regarding their duties to preserve, issue and implement litigation holds, and management of retention policies. As Judge Grimm noted in his Victor Stanley II decision, perhaps the best advice is to follow the requirements of the strictest jurisdiction in terms of preservation obligations – certainly an onerous task for any organization to achieve.