eDiscoveryDaily

You Have Gifts Already Waiting for You This Holiday Season: eDiscovery Holiday Greetings

Tom O’Connor and I conducted another successful CLE webcast yesterday, recapping the 2018 eDiscovery Year in Review, and it occurred to me that we don’t emphasize enough that all of the CLE webcasts we do are available for you to check out on your own – even months after the webcast has been conducted!  You just might be able to complete your entire CLE requirement by watching our webcasts!

But first, a quick note that The Expert Institute’s 2018 Best Legal Blog Contest has a little over two days left.  If you like our blog, please consider voting for us!  Simply go to this link, log in via Google, LinkedIn or Twitter, and cast your vote.  We appreciate the support!

Anyway, here’s a list of the CLE webcasts we’ve conducted this year:

Twelve CLE webcasts, twelve days of Christmas!  Coincidence?  I think not!  :o)

What a lot of people don’t realize is that CLE-accreditation is not just available for those who attended these webcasts live, it’s also available for those who view the webcasts on demand.  They are truly the gift that keeps on giving – CLE credits.  While each of these webcasts were accredited in selected states, CLE accreditation is available in additional states via reciprocity credit.  So, if you want to ask about CLE credit on any particular webcast, feel free to email me at daustin@ediscovery.co.

These twelve are part of nearly forty total informative webcasts on our site at our Webcasts page here.

I want to thank all of you who have read this blog over the course of this year and all of you who have attended at least some of our webcasts.  There are literally thousands of you who have done one or both and we wouldn’t have a reason to do it without your support.  Also, thanks to Tom O’Connor, my “wingman” for all of his contributions to our webcasts this year, he’s not only highly informative, but also a fun webcast partner.

We’re into our ninth year for eDiscovery Daily, and (other than the couple of weeks I take off at the end of each year to “recharge my batteries” – starting now!), are still going strong.  As we always say, please share any comments you might have or if you’d like to know more about a particular topic.  We love your feedback and suggestions (like the case law suggestion we received and published in yesterday’s post)!

Merry Christmas, Happy Holidays and Happy New Year!!  eDiscovery Daily will resume with new posts after the new year on January 2.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Request for Protective Order Against Producing Metadata for Medical Records: eDiscovery Case Law

I love it when a reader suggests a case for us to cover!  Thanks for the tip, Mike Hannon!

In Miller v. Sauberman, Index No. 805270/16 (N.Y. Dec. 6, 2018), New York Supreme Court Justice Joan A. Madden, despite the defendant’s estimated cost of $250,000 to produce metadata related to the plaintiff’s medical records, denied the defendant’s motion for a protective order and granted the plaintiff’s cross-motion to compel the production of that metadata within 30 days of the decision and order.

Case Background

In this action for damages for medical malpractice, the plaintiff’s counsel indicated that she received conflicting versions of the plaintiff’s medical record, with conflicting entries for the same items on the same record for the same days and those records were provided pre-suit.  The plaintiff argued that given the materiality of the fact as to when plaintiff developed bed sores, he was entitled to the audit trail and metadata that would presumably show when plaintiff’s electronic medical record was altered and by whom.

The defendant’s Chief Information Officer indicated his understanding that the record history was a “true record audit detailing any records with modifications that took place to the records after 7/29/14”.  However, he also indicated that they had not been able to determine the “root cause of why certain fields in the EMR print differently from the electronic version as seen on the computer screen.”  The plaintiff responded by stating that the defendant failed to provide an explanation for the “alteration” of the medical records, failed to produce the metadata and the audit trail exchanged was insufficient, since it did not cover the period after plaintiff’s discharge.

On August 16 after oral argument, the Court ordered the defendant to provide an affidavit regarding various parameters, including the software and storage systems, the date and parameters of the search, accessibility of the data in other storage systems or by other software systems and the cost of producing the requested metadata.  The vendor responsible for storing and maintaining the defendant’s electronic medical records indicated that they used “a software system called ‘SQL Server Management Studio’” and the “storage system from where the audit report was generated is called ‘SQL Server 2014’”.  The vendor also stated that “[b]ased on my many years of experience in the software and information technology sector generally, and in the area of metadata extraction specifically, in my opinion the cost estimate of producting [sic] full metadata for plaintiff’s entire medical record would be approximately $250,000 if MatrixCare were to outsource it to a vendor.”  Noting that the application is a “legacy system”, he also classified that as a “reasonable estimate, that could change extremely, either up or down, based on the specifics we would learn afer [sic] hiring the team and learning more about how the system gathers data.”

Judge’s Ruling

Judge Madden stated: “Based on the foregoing, plaintiff has made a sufficient showing for the production of metadata. Defendant has yet to provide a credible explanation for the different and conflicting versions of plaintiff’s medical record…Moreover, while the audit report is intended to show ‘all edits, changes, or modifications to any single record’ from May 8, 2014 through April 10, 2018, the report produced by Village Care shows no changes or modifications. Under these circumstances, where there is no explanation for the different and conflicting versions of plaintiff’s medical record, and where the issue as to when plaintiff developed bed sores is clearly material to plaintiff’s malpractice claim, plaintiff is entitled to the metadata for his medical record to determine if the medical record was altered, and if so, when and by whom.”  As agreed to by the plaintiff, Judge Madden limited the metadata to be produced to “Village Care’s Physician Progress Notes from May 8, 2014 through July 29, 2014”.  As a result, she denied the defendant’s motion for a protective order and granted the plaintiff’s cross-motion to compel the production of that metadata within 30 days of the decision and order.

So, what do you think?  Is it possible that it could actually cost $250K to produce metadata for a single patient’s medical records, even in a “legacy system”?  And, how do you get hired for that gig?  ;o)  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Today’s the Day to Learn about Important eDiscovery Developments for 2018: eDiscovery Webcasts

2018 has been a very busy and significant year from an eDiscovery standpoint. This year has had everything from new data privacy laws here and in Europe to the use of Internet of Things (IoT) devices in discovery to important trends regarding the use (or non-use) of Technology Assisted Review (TAR) to a landmark SCOTUS case regarding accessing cell phone location data without a warrant.  Today’s webcast will discuss what do you need to know about these and other important 2018 events and how they impact your eDiscovery efforts.  It’s our last webcast of the year!

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast 2018 eDiscovery Year in Review. In this one-hour webcast that’s CLE-approved in selected states, we will discuss key events and trends in 2018, what those events and trends mean to your discovery practices and provide our predictions for 2019. Topics include:

  • Technology Competence Trends and Developments
  • CLOUD Act and the Microsoft Ireland Case
  • General Data Protection Regulation (GDPR) and California Data Privacy Law
  • Data Privacy and Cybersecurity Trends and Challenges
  • SCOTUS Ruling in Carpenter v. US
  • Technology Assisted Review (TAR) Trends
  • Internet of Things (IoT) Devices as Sources of ESI
  • Business and Investment Trends within eDiscovery
  • Form of Production Trends and Disputes
  • New Resources for eDiscovery Best Practices

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here.  It’s not too late!  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn how key events and trends in 2018 can affect your eDiscovery practice, this webcast is for you!

So, what do you think?  Were you busy this year and have FOMO (fear of missing out) on important info for 2018?  If so, please join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

No New Trial for Defendant After Carpenter Ruling Because of “Good-Faith” Exception: eDiscovery Case Law

In U.S. v. Leyva, No. 16-cr-20723 (E.D. Mich. Nov. 26, 2018), Michigan District Judge Mark A. Goldsmith, while acknowledging that the ruling in Carpenter v. United States (which held that the government must obtain a warrant before acquiring cell site location information (“CSLI”)) “applies retroactively” to the defendant’s case, ruled that “the question of whether a constitutional right is retroactive is distinct from the question of whether an individual is entitled to a remedy from any constitutional violation”.  Citing the “good-faith” exception, where law enforcement acts in good faith in obtaining evidence that is ultimately found to have been obtained in violation of an individual’s constitutional rights, Judge Goldsmith denied the defendant’s motion for a new trial on the basis of Carpenter.

Case Background

The defendant was charged with conspiracy to possess, and attempted possession of, heroin. At her trial, the Government introduced, among other evidence, location information from three cell phones.  The CSLI evidence showed that two of the phones traveled between Detroit and Columbus in late October 2016, and that the other phone traveled between Michigan and Texas in spring 2016. The Government used this evidence in an attempt to show that Leyva was participating in a drug-trafficking conspiracy and the jury returned its verdict on June 7, 2018, finding the defendant guilty on both counts.

After the Supreme Court ruling in Carpenter on June 22, 2018, the defendant then filed an instant motion pursuant to Federal Rule of Criminal Procedure 33(a), arguing that the CSLI evidence introduced at her trial was inadmissible and, therefore, a new trial was required.

Judge’s Ruling

Judge Goldsmith noted that “The parties do not dispute that the warrantless search of Leyva’s cell phone records violated her Fourth Amendment rights. Evidence obtained in violation of an individual’s Fourth Amendment rights may be subject to exclusion at trial. However, because “`exclusion exacts a heavy toll on both the judicial system and society at large,’ not all violations of the Fourth Amendment result in the exclusion of evidence.” United States v. Fisher.”

Judge Goldsmith continued: “One exception to the exclusionary rule is the “good-faith” exception, where law enforcement acts in good faith in obtaining evidence that is ultimately found to have been obtained in violation of an individual’s constitutional rights. The Supreme Court has ‘said time and again that the sole purpose of the exclusionary rule is to deter misconduct by law enforcement.’”

Judge Goldsmith stated that “Leyva argues that Carpenter should be applied retroactively to her case, citing Linkletter v. Walker, 381 U.S. 618 (1965) and Griffith v. Kentucky, 479 U.S. 314 (1987). The Court agrees that Carpenter applies retroactively to her case. But the question of whether a constitutional right is retroactive is distinct from the question of whether an individual is entitled to a remedy from any constitutional violation.”  Noting that “the Government argues that it relied on the then-valid SCA, as well as the Sixth Circuit’s decision in United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), in obtaining the CSLI for the three cell phones. It contends that the good-faith exception should apply to permit the introduction of this evidence at Leyva’s trial”, Judge Goldsmith stated “The Court agrees” and denied the defendant’s motion for a new trial.

So, what do you think?  Should the “good-faith” exception enable CSLI evidence acquired before the SCOTUS Carpenter ruling to remain admissible?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Another Commentary from The Sedona Conference: eDiscovery Best Practices

The Sedona Conference® (TSC) Conference and its Working Group 1 on Electronic Document Retention & Production (WG1) have yet another publication to announce in 2018.  Last week, TSC’s WG1 group announced a new second edition commentary on Legal Holds.

Thursday, TSC’s WG1 group announced its Commentary on Legal Holds, Second Edition: The Trigger & The Process.  Much has changed in the law and technology since The Sedona Conference published the First Edition of this Commentary back in September 2010 (hey, that’s when this blog was founded!). This Second Edition of the Commentary on Legal Holds, which provides practical guidelines for determining when the duty to preserve relevant information arises as well as the scope of preservation, reflects:

  • the 2015 amendments emphasizing the proper scope of discovery and the enhanced role of proportionality in preservation, as well as sharpening the analysis of sanctions for the loss of discoverable electronically stored information (ESI);
  • clarification of the duty of a non-party to respond to a subpoena compared to the duty to preserve information;
  • new guidance on how organizations should address data protection laws and regulations that may affect an organization’s ability to implement legal hold data preservation measures outside of the United States;
  • developments in state and federal case law on preservation and spoliation;
  • new and novel sources of ESI requiring preservation and collection; and
  • advances in electronic document management technology.

Importantly, this Second Edition incorporates the knowledge and guidance embodied in the updated Third Edition of The Sedona Principles.

This Commentary is contained within a manageable 43 page PDF document and, as many good TSC commentaries do, includes several guidelines “to help a party meet its duty to preserve discoverable information and to provide pragmatic suggestions and a framework for creating a set of preservation procedures.”  Here they are:

Guideline 1: A reasonable anticipation of litigation arises when an organization is on notice of a credible probability that it will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation.

Guideline 2: Adopting and consistently following a policy governing an organization’s preservation obligations are factors that may demonstrate reasonableness and good faith.

Guideline 3: Adopting a procedure for reporting information relating to possible litigation to a responsible decision maker may assist in demonstrating reasonableness and good faith.

Guideline 4: Determining whether litigation is or should be reasonably anticipated should be based on a good-faith and reasonable evaluation of relevant facts and circumstances.

Guideline 5: Evaluating an organization’s preservation decisions should be based on the good faith and reasonableness of the decisions (including whether a legal hold is necessary and how it should be implemented) at the time they are made.

Guideline 6: Fulfilling the duty to preserve involves reasonable and good-faith efforts, taken as soon as is practicable and applied proportionately, to identify persons likely to have information relevant to the claims and defenses in the matter and, as necessary, notify them of their obligation to preserve that information.

Guideline 7: Factors that may be considered in determining the scope of information that should be preserved include the nature of the issues raised in the matter, the accessibility of the information, the probative value of the information, and the relative burdens and costs of the preservation effort.

Guideline 8: In circumstances where issuing a legal hold notice is appropriate, such a notice is most effective when the organization identifies the custodians and data stewards most likely to have discoverable information, and when the notice:

(a) communicates in a manner that assists persons in taking actions that are, in good faith, intended to be effective;

(b) is in an appropriate form, which may be written, and may be sent by email;

(c) provides information on how preservation is to be undertaken, and identifies individuals who can answer questions about preservation;

(d) includes a mechanism for the recipient to acknowledge that the notice has been received, read, and understood;

(e) addresses features of discoverable information systems that may make preservation of discoverable information more complex (e.g., auto delete functionality that should be suspended, or small sections of elaborate ac-counting or operational databases);

(f) is periodically reviewed and amended when necessary; and

(g) is followed up by periodic reminder notices, so the legal hold stays fresh in the minds of the recipients.43

Guideline 9: An organization should consider documenting the procedure of implementing the legal hold in a specific case when appropriate.

Guideline 10: Compliance with a legal hold should be regularly monitored.

Guideline 11: Any legal hold process should include provisions for releasing the hold upon the termination of the duty to preserve, so that the organization can resume adherence to policies for managing information through its useful life cycle in the absence of a legal hold.

Guideline 12: An organization should be mindful of local data protection laws and regulations when initiating a legal hold and planning a legal hold policy outside of the United States.

The Sedona Conference Commentary on Legal Holds, Second Edition: The Trigger & The Process is open for public comment through February 8, 2019. As always, questions and comments regarding the Commentary may be sent to comments@sedonaconference.org and the drafting team will carefully consider all comments received and determine what edits are appropriate for the final version.  You know the drill.

It’s been a busy year for The Sedona Conference® (TSC).  Earlier this year, the TSC has published the Public Comment Version of its Principles and Commentary on Defensible Disposition, the Public Comment Version of their Primer on Social Media, Second Edition (which we discussed in our panel at Relativity Fest earlier this week), the Public Comment version of its Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations, the final version of its new Data Privacy Primer and its Commentary on Information Governance, Second Edition.

So, what do you think?  Does your organization have a program for Legal Holds?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

A Second State Now Has Approved a Technology CLE Requirement for its Lawyers: eDiscovery Trends

In 2016, Florida became the first state to mandate technology training for lawyers, when it adopted a rule requiring lawyers to complete three hours of CLE every three years “in approved technology programs.”  Then, back in May, we reported that another state was getting close to requiring technology training for part of their yearly CLE requirement.  Now, that state has formally approved that requirement.

According to Robert Ambrogi and his Law Sites blog (North Carolina Becomes Second State to Mandate Technology Training for Lawyers), North Carolina (my new home away from home because of this) has become the second state to mandate continuing education for lawyers in technology. Beginning in 2019, all lawyers will be required to complete one hour per year of CLE devoted to technology training.

The North Carolina Supreme Court approved the requirement at a conference on Sept. 20, according to the State Bar’s website.

As proposed by the State Bar, the new rule read:

“Technology training” shall mean a program, or a segment of a program, devoted to education on information technology (IT) or cybersecurity (see N.C. Gen. Stat. §143B-1320(a)(11), or successor statutory provision, for a definition of “information technology”), including education on an information technology product, device, platform, application, or other tool, process, or methodology. To be eligible for CLE accreditation as a technology training program, the program must satisfy the accreditation standards in Rule .1519 of this subchapter: specifically, the primary objective of the program must be to increase the participant’s professional competence and proficiency as a lawyer. Such programs include, but are not limited to, education on the following: a) an IT tool, process, or methodology designed to perform tasks that are specific or uniquely suited to the practice of law; b) using a generic IT tool process or methodology to increase the efficiency of performing tasks necessary to the practice of law; c) the investigation, collection, and introduction of social media evidence; d) e-discovery; e) electronic filing of legal documents; f) digital forensics for legal investigation or litigation; and g) practice management software. See Rule .1602 of this subchapter for additional information on accreditation of technology training programs.

Here is the full text of the new rule amendments.

Next up, Pennsylvania?  Earlier this year, the ABA Journal reported that the Pennsylvania Bar has also recommended that the state supreme court adopt a one-hour, every two-years technology CLE requirement.  No word on that approval – yet.

So, what do you think?  Will we see more states require technology CLE?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Seriously, Your “Mashup” of eDiscovery Market Estimates Can’t Possibly Be Any Earlier, Right?: eDiscovery Trends

The appearance of the mashed potato graphic can only mean one thing (besides making me hungry, that is!).  It’s time for the eDiscovery Market Size Mashup that Rob Robinson compiles and presents on his Complex Discovery site each year.  It’s also become an annual tradition for him to release it earlier and earlier each year.  And, this year is no exception.

Last year, Rob released his annual mashup over the Christmas holidays.  This year, Rob released his worldwide eDiscovery services and software overview for 2018 to 2023 – before Thanksgiving!  I almost missed it.  At this rate, I predict it before Halloween next year…  :o)

This is the seventh(!) year we have covered the “mashup” and we can continue to gauge how accurate those first predictions were.  The first “mashup” covered estimates for 2012 to 2017 and, last year, we took a look how close the estimate was for 2017 way back when.  This year, we can look at the original 2018 estimate for 2013 to 2018. We’ve also covered the estimates for 2014-2019 (in two parts), 2015 to 2020, 2016 to 2021 and 2017 to 2022 and will undoubtedly look at those in future years.

Taken from a combination of public market sizing estimations as shared in leading electronic discovery publications, posts, and discussions (sources listed on Complex Discovery), the following eDiscovery Market Size Mashup shares general market sizing estimates for the software and services area of the electronic discovery market for the years between 2018 and 2023.

Here are some highlights (based on the estimates from the compiled sources on Rob’s site):

  • The eDiscovery Software and Services market is expected to grow an estimated 13.09% Compound Annual Growth Rate (CAGR) per year from 2018 to 2023 from $10.11 billion to $18.7 billion per year. Services will comprise approximately 69.9% of the market and software will comprise approximately 30.1% by 2023.
  • The eDiscovery Software market is expected to grow at an estimated 13.23% CAGR per year from $3.02 billion in 2018 to $5.62 billion in 2023. In 2018, software comprises 29.9% of the market and, by 2023, 62% of the eDiscovery software market is expected to be “off-premise” – a.k.a. cloud and other Software-as-a-Service (SaaS)/Platform-as-a-Service (PaaS)/Infrastructure-as-a-Service (IaaS) solutions.
  • The eDiscovery Services market is expected to grow at an estimated 13.03% CAGR per year from 2018 to 2023 from $7.09 billion to $13.08 billion per year. The breakdown of the services market by 2023 is expected to be as follows: 65% review, 19% processing and 16% collection.

If we look at the original “mashup” that we covered for 2013 to 2018, the original eDiscovery Software and Services market estimate for 2018 was $11.02 billion, the original Software portion of the estimate was $3.31 billion and the original Services portion of the estimate was $7.72 billion.  So, the original software estimate was overstated at .29 billion, while the original services estimate was overstated by .63 billion.  Overall, that’s an overstatement of .92 billion.  Not surprising, since the CAGR for both has declined in the latest estimates.  Here is the variation in CAGR over all seven “mashups” we have covered.

A couple of other notable stats:

  • The U.S. constitutes approximately 64% of worldwide eDiscovery software and services spending in 2018, with that number decreasing to approximately 59% by 2023.
  • Off-Premise software spending constitutes approximately 52% of worldwide eDiscovery software spending in 2018, with that number increasing to approximately 62% by 2023. This is a slower move to off-premise than previously forecasted.

So, what do you think?  Do any of these numbers surprise you?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Sanctions Defendants in Jimi Hendrix Copyright Infringement Case: eDiscovery Case Law

In Experience Hendrix, L.L.C. et al. v. Pitsicalis et al., No. 17 Civ. 1927 (PAE) (S.D.N.Y. Nov. 28, 2018), New York District Judge Paul A. Engelmayer granted the plaintiffs’ motion for an adverse inference instruction against selected defendants associated with Purple Haze Properties (referred to as the “PHP defendants”) and he directed the PHP defendants to pay the reasonable fees and costs incurred by plaintiffs in bringing the motion.  He denied (at least at this time) the plaintiffs’ request for terminating sanctions and a preliminary injunction against the PHP defendants.

Case Background

In this copyright infringement case related to products that depict Jimi Hendrix and bear his name, the court indicated that it had “been called on repeatedly to issue orders aimed at assuring the PHP defendants’ compliance with elementary discovery obligations.”  The plaintiffs’ latest allegations of PHP defendants’ discovery abuses included the following:

  • The PHP Defendants’ Failure to Produce Forensic Images as Ordered: The PHP defendants initially requested additional time to comply with a July 10 order, explained that they had had difficulty hiring an expert technician who could image the hard drives and also claimed that images with privileged information were mixed with non-privileged images. The Court granted the additional time, but also imposed a fine of $100 per weekday after July 23 that the PHP defendants failed to produce the hard-drive images.  When they did eventually produce some, but not all of the forensic images, they were not “forensic” images, but rather only the data visibly resident on those devices.  The PHP defendants were given another chance and produced images on August 17 (six business days after another extended deadline), but those images didn’t show any previously deleted files.  For various discovery deficiencies, the Court issued an order directing the PHP defendants to “issue to plaintiffs a check in the amount of $12,787.50 by September 21 and followed up with another order to “pay $100 in sanctions to the Registry of the Court for each weekday after the deadline that payment remained outstanding” (to go with $4,600 in previous sanctions issued).
  • The PHP Defendants’ Use of Anti-Forensic Software: The plaintiffs’ forensic expert, John T. Myers (whose testimony the Court deemed credible and persuasive), found that each of the three computers he reviewed contained anti-forensic software (Advanced Mac Cleaner and CleanMyMac). While Myers noted that Advanced Mac Cleaner may be able to eliminate files without specifically alerting the user in advance, he (and the PHP defendants’ expert) testified that CleanMyMac allows users to help free up space on their hard drives by running scans and identifying files that the user may choose to delete.
  • The PHP Defendants’ Failure to Ensure Preservation of Documents on a Seventh Computing Device: This device, which was shown in a picture of the office of Andrew Pitsicalis (president of PHP) on PHP’s Facebook page was never produced and was claimed to be owned by an individual who had taken it with him to Florida.
  • Andrew Pitsicalis’ Deletion of Relevant Text Messages: Myers testified that a forensic examination showed that more than 500 text messages had been deleted from the iPhone during the pendency of this lawsuit. Of these, Myers found nine that explicitly use the term “Jimi.” Pitsicalis had exchanged these text messages between July 12, the day after the Court’s July 11 order directing the PHP defendants to produce responsive documents to plaintiffs, and August 13.

Judge’s Ruling

With regard to the PHP defendants’ duty to preserve evidence, Judge Engelmayer found that “and the evidence to this effect is overwhelming—that the PHP defendants repeatedly breached this duty. The breaches fall in three categories: (1) the use of cleaning software on covered computing devices, (2) the failure to disclose the existence of a seventh computing device containing potentially relevant documents, and (3) the deletion of relevant text messages.”  Judge Engelmayer also found that much of the spoliation was intentional (the use of Advanced Mac Cleaner could not be verified as intended spoliation, but the use of CleanMyMac was found to have been intentional).

As a result, Judge Engelmayer, indicating that “the Court has been called upon dismayingly often to act when presented with evidence of the PHP defendants’ persistent non-compliance with basic discovery obligations”, granted the plaintiffs’ motion for an adverse inference instruction against the PHP defendants, and he directed the PHP defendants to pay the reasonable fees and costs incurred by plaintiffs in bringing the motion.  With regard to the plaintiffs’ request for terminating sanctions, Judge Engelmayer stated: “At the present time, the Court’s judgment is that such extreme sanctions are not warranted, although further acts of spoliation and/or other discovery abuses could produce a different result.”

So, what do you think?  Should terminating sanctions have been awarded?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

For more on this case (including references to Jimi Hendrix’s legendary, but short, career), check out Ralph Losey’s e-Discovery Team® blog here.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

A New Product Helps You Get “Context” on Judge’s Opinions and Expert Witnesses: eDiscovery Trends

A legal analytics product being launched last week by LexisNexis analyzes the language of specific judges’ opinions to identify the cases and arguments each judge finds persuasive as well as analytics on expert witnesses.  And, we remember one judge who, sadly, passed away over the weekend.

According to Bob Ambrogi’s LawSites blog (‘Context,’ Launching Today from LexisNexis, Applies Unique Analytics to Judges and Expert Witnesses), the new product, Context, is “déjà vu all over again” (my second favorite Yogi Berra line). The original version of these judge analytics was launched by Ravel Law in 2015. After LexisNexis acquired Ravel in June 2017, development pivoted to incorporating Ravel’s tools into the Lexis Advance legal research platform. The first stage of that incorporation came last June, when Lexis Advance integrated Ravel’s case law visualization tools as a product called Ravel View. Last week’s launch of Context is the second major step in that integration.

Last week’s launch, with judge analytics and expert witness analytics, is the first phase of Context. Future releases will add court analytics, company analytics, and lawyer and law firm analytics.

Bob broke down the capabilities, as follows:

Judge Analytics

What makes this product unique among litigation analytics tools is that it analyzes the language of court documents.  Unlike other products, which can only tell you information such as how long a particular type of case is likely to last, how a judge is likely to rule on a particular type of issue, or how other lawyers have fared before a particular judge, Context analyzes the text of court documents to find language and citations that could prove persuasive to a particular judge. Specifically, it tells you how a judge has ruled on 100 different types of motions and the judges, cases and text the judge most commonly relied on in making those rulings.

Say you are filing a motion for summary judgment. Using Context, you could look up the judge and determine the rate at which that judge grants or denies summary judgment. You could see all of the specific cases in which the judge made these rulings. Then, going deeper, you can see the opinions that the judge most frequently cites in summary judgment cases, and even the specific text from those opinions that the judge most frequently relies on.

With this information, you can tailor your memorandum to fit the judge. You can cite the judges, cases and even passages that you know the judge has relied on in the past and finds persuasive.  Context’s judge analytics cover all federal judges, including appellate judges, and some, but not all, state court judges.  And, there is no backward time limit to Context’s coverage. If a judge has been on the bench for decades, the entirety of the judge’s output is included in Context’s analytics.

Expert Witnesses

The expert witness analytics released last week are a new analytics product not previously offered as part of Ravel’s original set of analytics tools. The reason for that is simple: Ravel did not have data on expert witnesses, but LexisNexis has an extensive set of such data, covering more than 380,000 experts.

For each expert covered by Context, a user can see an overview that provides biographical and experiential information about the expert. For many experts, this includes not only the expert’s current CV, but also prior versions of the CV as it has been presented over the years. The overview also shows whether the expert is typically hired by plaintiffs or defendants, the number of cases per year the expert is engaged in, and the expert’s experience by jurisdiction and areas of law.

Pricing and Availability

LexisNexis is offering 30 days of free access to Context to any Lexis Advance subscriber who registers at www.lexisnexis.com/context. The free trial will run from Jan. 2 to Jan. 31, 2019. In addition, LexisNexis is providing free access starting today to all law school faculty, and to all law students who have a Lexis Advance ID starting Jan. 2.   You can read more about Context (and see screen shot examples of the product) via the link to Bob’s article above.

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Also, The Sedona Conference® yesterday announced the passing of U.S. Magistrate Judge Craig Shaffer of the District of Colorado, who passed away after a battle with cancer in the early hours of Saturday, December 1.  Judge Shaffer—“Craig” to everyone in The Sedona Conference—was a regular dialogue leader at Working Group 1 meetings and a member of the faculty of three Sedona Conference Institute programs.  In addition to his long legal career, Craig was an invaluable contributor to several Working Group Series publications, including the Commentary on Proportionality in Electronic Discovery (May 2017) and Commentary on Defense of Process (September 2016). He was also one of the original signatories to the Cooperation Proclamation and served on The Sedona Conference Advisory Board since 2006.  You can read more about Judge Shaffer at the TSC website here.

While I never met Judge Shaffer personally, I am certainly aware of him by reputation and it’s clear he has had a significant impact on the legal profession.  My thoughts and prayers are with his family.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Hewlett-Packard/Autonomy Deal Results in More Indictments: eDiscovery Trends

There continues to be more legal fallout from the Hewlett-Packard (HP) 2011 acquisition of Autonomy (which we covered here) and HP’s allegations that there were “serious accounting improprieties, disclosure failures and outright misrepresentations at Autonomy” before the acquisition (which forced HP to take an $8.8 billion charge in 2012.  Then, earlier this year, former Autonomy CFO Sushovan Hussain was convicted of 16 counts of wire and securities fraud related to the $10.3 billion transaction.  Now, more indictments have been handed down.

According to Bloomberg (Ex-Autonomy CEO Michael Lynch Indicated for Fraud Tied to 2011 HP Deal, written by Joel Rosenblatt), Michael Lynch, the former CEO of Autonomy, stepped down Friday as an adviser to U.K. Prime Minister Theresa May after he was charged with fraud in the U.S.  Prosecutors had long identified Lynch, 53, as a co-conspirator with Hussain.  The indictment, filed in San Francisco federal court, also names 46-year-old Stephen Keith Chamberlain, who was Autonomy’s vice president for finance, as a defendant. Lynch and Hussain also face a $5.1 billion civil case filed by HP in London.  Autonomy was the U.K.’s second-largest software business at the time.

Lynch used false and misleading statements from 2009, 2010 and early 2011 “to make Autonomy more attractive to a potential purchaser like HP,” according to the indictment, which says Lynch made $815 million when HP acquired his Autonomy shares.

Lynch’s lawyers called the indictment a travesty, saying it shouldn’t have been brought in the U.S. as it “targets a British citizen with rehashed allegations about a British company regarding events that occurred in Britain a decade ago.” They said the U.S. is making Lynch a “scapegoat” for HP’s “long history of failed acquisitions.”  But, Hewlett Packard Enterprise Co. (which was formed in the breakup of HP’s corporate computing divisions from its printer and PC business in 2015) praised the indictment.  “HPE believes that the facts uncovered during the course of this matter will further demonstrate the harm that was caused by Dr. Lynch, Mr. Chamberlain, Mr. Hussain and others to HP,” spokesman Emmanuel Fyle said in an email.

The charges were filed as lawyers representing Invoke Capital, a London-based venture capital firm founded by Lynch, are resisting a court order requiring Hussain to disclose details about his financial dealings with Lynch that prosecutors said raise concerns about “potential hush money.” Hussain, whose sentencing date was postponed, was required to disclose his stake, with Lynch, in Invoke and startup company Darktrace Ltd.

The government has argued that Lynch’s reassembling of his Autonomy inner circle at the new firm, including Hussain, isn’t illegal by itself but may have created financial relationships that prevented some of those people from coming forward as witnesses.

It certainly appears that the fallout from this 2011 acquisition will continue for some time to come.

So, what do you think?  Will we see an eDiscovery deal like that again?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.