Part 3 of 6: Proportionality in discovery proposals for amendments to FRCP – Electronic Discovery

Part 3 of 6: Proportionality in discovery proposals for amendments to FRCP

 

By Cynthia Courtney, Esq., and Peter Coons | D4 LLC

Note:This is part 3 of 6 articles in a  series published on InsideCounsel covering the proposed amendments to the Federal Rules of Civil Procedure (FRCP).  Read Part 1 and Part 2.  You can also sign up to be notified when the next article is published; articles are published every two weeks.

For those who closely follow the law and literature about electronic discovery, “proportionality” is a word and concept that has great significance. Until the current proposed rule changes, however, the “P” word did not appear in the rules but was understood to comprise the factors enumerated in existing Rule 26(b)(2)(C)(iii) — sometimes known as a cost-benefit analysis — that a court must use when it considers whether to limit the frequency or extent of discovery…

Several proposed amendments seek to promote proportionality in discovery by directly amending the scope of discovery, promoting clearer responses to Rule 34 requests for production, reducing the presumptive limits on the number of depositions and interrogatories, adding a limit to the number of requests for admission, and explicitly recognizing the authority to allocate expenses in discovery.

Read Part 3 Now

 

Sign up to be notified when the next article is published. Once you submit the short form (only email required), you will be brought to the article on InsideCounsel.com.

Cynthia Courtney is the current assistant Attorney General for the state of Connecticut. She was formerly vice president discovery engineering and general counsel at D4. She has more than 10 years of e-discovery experience, obtained both as in-house counsel managing litigation and as eDiscovery counsel to a major law firm.

Peter Coons is a senior vice president at D4, providing eDiscovery and digital forensics consulting services to clients. Peter is a Certified Information Systems Security Professional (CISSP), an EnCase Certified Examiner (EnCE), an Access Data Certified Examiner (ACE), and a Certified Computer Examiner (CCE). He belongs to various digital investigation and information security based organizations. Peter holds a master’s degree in Digital Forensics Management from Champlain College and a bachelor’s degree in Economics from the State University of New York at Oneonta.


 

Background:

Part 3 of 6: Proportionality in discovery proposals for amendments to FRCP
Source: original article
Author: d4admin
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

LegalTech 2014 – A Focus on Information Governance – Electronic Discovery

LegalTech 2014 – A Focus on Information Governance

Last week I attended LegalTech at the Hilton in New York City. During the past two years the focus of LegalTech has largely been on the continuing Predictive Coding discussion with an emphasis on using it to reduce the cost of discovery. This year’s conference, however, featured more varied CLE topics and discussions.

One of the most talked about topics this year was the emergence of meaningful information governance. This focus on the reduction of stored data represents a sea change in thinking for potential litigants. Following Zubulake and its progeny, organizations endeavored to preserve all ESI they created. This helped to insulate them from the dreaded spoliation issue, but it also led to a steady rise in discovery costs.

Organizations are beginning to think of efficient and defensible ways to reduce the amount of data that they are storing because of these discovery costs. It only makes sense that lower amounts of stored data means that less will be collected, review and produced.

Document retention policies have been at the forefront of this governance effort. While drafting of retention policies is relatively easy, implementation sometimes lags far behind. There are plenty of reasons for this, but one is that old habits die hard. Individuals within organizations are used to receiving litigation holds and being told that consequences for destruction of ESI are major.

Another challenge to information governance has been the advent of “Bring Your Own Device” policies as well as people becoming more technologically savvy. Company data is now stored locally on various laptops, iPhone and Blackberries owned by individual employees. More and more potential custodians are also archiving email to container files such as PSTs and saving them locally to their machines.

It remains to be seen whether this rise in the information governance discussion will eventually lead to a reduction in eDiscovery costs. Its prominence at LegalTech, however, shows that organizations are making an effort to think intelligently about preservation issues with an eye towards defensible, cost saving measures.

Background:

LegalTech 2014 – A Focus on Information Governance
Source: original article
Author: Ian D. McCauley
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

February 2014 – Electronic Discovery

February 2014

The D4um - D4 eDiscovery newsletter

By Frank Gorman, Strategic Initiatives
Frank Gorman

Bitcoin is a de-centralized digital currency. It has no reserve and no single institution controls it. They are stored purely online. You cannot print them, mint them, or create them in any physical manifestation. In fact, they do not even come in the form of a tangible computer file as one might imagine existing on a hard drive.

Read More…

By Cynthia Courtney, Esq., and Peter Coons, SVP, Strategic Initiatives
Peter Coons

This part (Part 2) of the article series published on InsideCounsel.com compares the original rule to the proposed amendment and explains the rationale of the provision to Rule 4(m), Rule 16(b)(2), Rule 16(b), Rules 16(b)(3), Rule 26(f), Rule 16(b)(3)(v), and Rule 26(d)(1).

Read More…

 
 

By Peter Coons, SVP, Strategic Initiatives
Peter Coons

Have you ever had to ship a hard drive, thumb drive or CD to another party; or to a vendor for processing and hosting? Did you put the media in the container or envelope and cross your fingers, hoping it would arrive safely? Or did you follow best practices and make a copy of it prior to shipping?

Read More…

eDiscovery In the News and on the Web

Turning Ethics and Compliance into a Game
Corporate Counsel, Sue Reisinger, February 4, 2014

LTNY Keynote Day 3: Privacy and Security
Law Technology News, Katherine Montgomery, February 6, 2014

Use It or Lose It in E-Discovery (Judges Panel at LTNY)
Law Technology News, Gail Gottehrer, February 5, 2014

Equivio Launches Game-Changing Predictive Coding Platform for Information Governance
Press Release, Equivio, February 4, 2014

Background:

February 2014
Source: original article
Author: d4admin
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

February 15th weekend e-discovery compendium: Ralph Losey takes “Minority Report” science to create smart data. Really smart data. – Electronic Discovery

February 15th weekend e-discovery compendium: Ralph Losey takes “Minority Report” science to create smart data. Really smart data.

This weekend:  

* The science of “Minority Report” meets the existing software and probability analysis of legal search methods.

Endnotes: Glenn Greenwald is back; an excruciatingly gentle introduction to Bayesian reasoning; plus a video – your brain on Alfred Hitchcock.

Here is our weekend edition of the “Top 20 plus more” … a snapshot of some interesting eDiscovery issues, corporate risk developments and technology considerations from the past week. It is compiled by Rob Robinson who is an electronic discovery industry professional and author of the ComplexDiscovery blog.

Rob is a long-time member of and contributor to The Posse List and The Electronic Discovery Reading Room and he regularly compiles and curates information from online public domain resources and highlights key electronic discovery and corporate risk related stories, developments, and announcements. This is supplemented by the editorial staff of The Electronic Discovery Reading Room.

This week’s update is sponsored by TrustPoint International, a strong partner of The Posse List and the Electronic Discovery Reading Room.

Ralph Losey takes “Minority Report” science to create smart data. Really smart data.

 15 February 2014 – While talking about a new year’s next cool thing or development is a thoroughly enjoyable ritual … adored by e-discovery pundits … discussing what will not change provides valuable lessons for technology adoption strategy and disruptions.

One thing agreed by all: analytics will remain undemocratic. Yes, there are innovative data analysis and visualization technology players such as Tableau, QlikView, Alteryx, and Tibco (Spotfire) that have gained traction as “end user” friendly products. In the e-discovery area think the metric dashboards developed by Hitachi Data Systems, the arsenal of assessment reports and graphical data visualization charts developed by ZyLAB, and the data analytics and data visualization tools of Logikcull. However, despite significant efforts to “consumerize” e-discovery data analysis and move the power out of the ivory towers of vendors, 2014 will witness only incremental changes in this regard.

And that other big thing … predictive coding … remains “a project”. Companies and law firms are still talking about predictive coding as a “pilot” of new technology, not ready for “mainstream introduction”.

That attitude defeats the whole purpose, the potential of predictive analytics. To gain real advantage from the deluge of data, companies must engrain a “predictive” mindset into their DNA, rather than treating it as a silo “project”. Despite the pounding-on-the-table of such leading e-discovery lights as Jason Baron, predictive coding continues to be a tough sell.

Much of the business/industrial world “gets it”. Go to any event like an IBM analytics workshop or InformationWeek predictive analytics conference and what you hear is not “Big Data”. You hear “Smart Data”. Smart Data generally is information that has been enhanced by predictive analytics. It is Big Data’s second act.

In preparing for the Mobile World Congress next week I revisited my contacts at MIT Media Lab, MIT SENSEable City Lab, and other sources. One of the things MIT SENSEable City Lab is working on is an analytics study that leverages mobile phone data to analyze human mobility patterns in developing countries, especially in comparison to more industrialized countries. The analytics have already marked a number of factors that influence mobility, such as less infrastructural coverage and maturity, less economic resources and stability, and in some cases, more cultural and language-based diversity. As one of my contacts told me “there is so much good analytics out there that moving from “big” data to “smart” data should be and can be the goal of any industry.”

In the legal world nobody has given this more thought … obsessive thought … than Ralph Losey. Nobody believes more and works harder to achieve that predictive coding DNA mindset.

So his newest venture should come as no surprise: Presuit™. Quoting Ralph:

Predictive analytics has progressed to the point that Corporate Counsel could, given the right tools and knowledge, predict and prevent many of the law suits now hemorrhaging corporate America. Insurance companies could do the same thing, predict what claims will likely trigger litigation and take steps to avoid these costly disputes. It is all a matter of knowing how to obtain and use Smart Data to serve as an early warning system – Smart Data that will reveal emerging patterns of wrongful conduct before they ripen into litigation. I call this data analytics based program of litigation avoidance, Presuit™.

You got it. We are talking about the use of predictive coding type AI technologies to take corporate compliance to the next level. Yes, machine learning for legal compliance is a new tool, and Smart Data has never before been used to identify potential litigation. But it can be. It will be.

For all the details go to Ralph’s detailed description (click here).

 

Endnotes:

 

* He’s back!!!!! Glenn Greenwald is back reporting about the NSA, now with Pierre Omidyar’s news organization FirstLook and its introductory publication, The Intercept. Writing with national security reporter Jeremy Scahill, his first article covers how the NSA helps target individuals for assassination by drone.

Leaving aside the extensive political implications of the story, the article and the NSA source documents reveal additional information about how the agency’s programs work. From this and other articles, we can now piece together how the NSA tracks individuals in the real world through their actions in cyberspace. Its techniques to locate someone based on their electronic activities are straightforward, although they require an enormous capability to monitor data networks. One set of techniques involves the cell phone network, and the other the Internet.

Every cell-phone network knows the approximate location of all phones capable of receiving calls. This is necessary to make the system work; if the system doesn’t know what cell you’re in, it isn’t able to route calls to your phone. We already know that the NSA conducts physical surveillance on a massive scale using this technique.By triangulating location information from different cell phone towers, cell phone providers can geolocate phones more accurately. This is often done to direct emergency services to a particular person, such as someone who has made a 911 call. The NSA can get this data either by network eavesdropping with the cooperation of the carrier, or by intercepting communications between the cell phones and the towers.

A previously released Top Secret NSA document says this: “GSM Cell Towers can be used as a physical-geolocation point in relation to a GSM handset of interest.”This technique becomes even more powerful if you can employ a drone. Greenwald and Scahill write: “The agency also equips drones and other aircraft with devices known as ‘virtual base-tower transceivers’ — creating, in effect, a fake cell phone tower that can force a targeted person’s device to lock onto the NSA’s receiver without their knowledge.”  For the full piece click here.

 

*Looking for a concise explanation of how Bayesian components work? Got one for you. Research fellow Eliezer Yudkowsky of the Machine Intelligence Research Institute (I’ve written about them many times before; big, big artificial intelligence research facility in California) shares on his website“An Intuitive Explanation of Bayes’ Theorem: Bayes’ Theorem for the Curious and Bewildered; an Excruciatingly Gentle Introduction.” The researcher explains why he created and is sharing this explanation: ” … my experience with trying to introduce people to Bayesian reasoning is that the existing online explanations are too abstract. People do not employ Bayesian reasoning intuitively, find it very difficult to learn Bayesian reasoning when tutored, and rapidly forget Bayesian methods once the tutoring is over.”

It is as advertised: an excruciatingly gentle introduction that invokes all the human ways of grasping numbers, from natural frequencies to spatial visualization. To download click here.

 

*What happens when your brain is on Alfred Hitchcock: the neuroscience of film. One of the things that is great when you are in a neuroscience program and a member of umpteen neuroscience social media sites is that people are always sending you cool stuff. If you have 22 minutes, why not sit back and watch the classic piece of television from a 1961 episode of Alfred Hitchcock Presents called “Bang, You’re Dead”? I’ve embedded it below. You may well have seen it before, quite possibly long ago, but you’ll find it holds up, keeping you in suspense today as artfully as it or any other Hitchcock production always has.

But why do we get so emotionally engaged in this simple tale of a five-year-old boy who comes into possession of a real handgun that he mistakenly thinks a harmless toy? The answers are rooted in the mechanics of the human brain and this is all part of a study entitled “Neurocinematics: the Neuroscience of Film,” a presentation by Princeton University’s Neuroscience Institute.

Hitchcock was well ahead of the pack on this one. In a biography I just finished he said he conceived of his style of cinema as “doing experiments on the audience,” and called his movies “a sequence of stages designed to have an effect on your brain.” The brains of everyone sitting in the theater thus, theoretically, all become “resonant and aligned with the movie in a very powerful and complicated way.” Various types of neuroscience research bear this out, from measuring the skin temperature, perspiration, and blood flow in the brains of subjects as they watch Hitchcock’s young protagonist add more “toy” bullets to the “toy” gun he brandishes around the neighborhood.

I have a link to all the functional MRI machine data if you want it. For now just enjoy .. if you can:

By: Gregory P. Bufithis, Esq. / Chairman and Founder of  The Project Counsel Group

 

And now Rob Robinson’s e-discovery compendium: 

 

News-eDiscovery-Now - Cropped 48x48 eDiscovery Now for Legal Professionals

Providing legal professionals with a weekly overview of the latest developments, opinions and news in the field of eDiscovery.

  • 6 Degrees of Discoverability – http://bit.ly/1fcUEpG (Tim Noonan)
  • Another Court Puts an End to a Social Media Discovery Fishing Expedition – http://bit.ly/1dvbA9z (Evan Brown)
  • ‘Discovery About Discovery’ Motions Lead to Unusual Court Decision – eDiscovery Case Law – http://bit.ly/1lG4aud (Doug Austin)
  • Employer eDiscovery Duties Expand in a ‘BYOD’ Environment Re: Employee Devices – http://bit.ly/1fQfYoC (Mark Foley)
  • Facebook Evidence: Social Media Authentication – Delaware Adopts Texas Approach: Let the Jury Decide, Once the Trial Judge Determines That a Reasonable Jury Could Find the Social Network Evidence Authentic – http://bit.ly/NsGLxr (Joseph Hage Aaronson)
  • Federal Circuit Clarifies Standard for Recovery of eDiscovery Costs – http://bit.ly/1fcePDY (Shane Olafson)
  • Five Biggest Developments In Cloud Storage – http://bit.ly/1noZPXK (LaGeris Underwood Bell)
  • Growth of Spoliation Claims, Sometimes in Place of Substantive Claims, Shaping Legal Technology – http://bit.ly/1g1J43L (Adam Losey)
  • International E-Discovery Standards Moving Forward – http://bit.ly/NvZlVi (Mark Michels)
  • Key eDiscovery Cases in January – Technology Law Source – http://bit.ly/1g3i18f (Jay Yurkiw)
  • Presuit: How Corporate Counsel Could Use Smart Data to Predict and Prevent Litigation – http://bit.ly/1aNaJq3 (Ralph Losey)
  • Proposed Amendments to the FRCP Prioritize Early and Active Judicial Management – http://bit.ly/1g1BDcV (Cynthia Courtney, Peter Coons)
  • Reflections on the Proposed Amendments to F.R.C.P. 37 as the End of the Public Comment Period Nears – http://bit.ly/1eNCf6r (Sandra Ocasio)
  • Ride The Lightning: ‘Certified Computer Examiner’ Pleads Guilty to Lying About Certifications – http://bit.ly/N7JFrj (Sharon Nelson)
  • Sanctions Awarded when Defendant Failed to Preserve Relevant Evidence – eDiscovery Case Law – http://bit.ly/1np1Gft (Doug Austin)
  • Speak Now or Forever Hold Your Peace: Comment Period on Proposed Amendments to Federal Rules Closes 2/15/2014 – http://bit.ly/1g22QNk (K&L Gates)
  • Social Media Discovery: Vague Limits Are Still Limits In Bullying Case – http://bit.ly/1dvbH4V (Amber Williams)
  • Technology-Assisted Review: Escape From the Island of eDiscovery – http://bit.ly/1fMLMde(Jason Baron)
  • Technology: Using Logic to cut Review Costs – http://bit.ly/1dxwHrQ (Andy Kraftsow)
  • The Benefits of Legal Project Management and Advance Budgeting – http://bit.ly/Nv6WU9 (Samuel Goldblatt)
  • The Effects of Cultural Differences and Data Privacy Regulations on Cross-border Litigation – http://bit.ly/1lFY7G7 (Brad Mixner)
  • The Future of the EU-US Safe Harbor Data Privacy Policy – http://bit.ly/NxQO4v (Gerry Grealish)
  • The New Frontier: Predictive Coding for Information Governance – http://bit.ly/1fKvr9C (Katherine Montgomery)
  • Three Decision Drivers in eDiscovery Sourcing: Cost, Time and Complexity –  http://bit.ly/1aN9HdB (@ComplexD)
  • Top 5 Practical Decision Points Related To Predictive Coding – http://bit.ly/NxMu51 (Brian Kapatkin)
  • Use it or Lose It in eDiscovery – Judges Panel and Audience Feedback – http://bit.ly/1fIxye8 (Gail Gottehrer)

ActionableINTActionable Intelligence for In-House Counsel

Providing in-house counsel with a weekly overview of significant legal and technology-related stories centered around the corporate risk topics of compliance, information governance, privacy and security.

  • 6 Ways In-house Counsel Can Aid Outside Counsel in Litigation (Part 1) http://bit.ly/1lFZhBl (Penelope Taylor)
  • 6th Annual Legal Department Operations Manager Survey Results Are Here – http://bit.ly/1dOD7Tr (Gabriella Khorasanee)
  • 2013 Year-End Securities Litigation Update – http://bit.ly/1co2xrv (Jonathan Dickey)
  • CIOs Still in Control of Most IT Spending, Forrester Says – http://bit.ly/1fUyTfZ (Chris Kanaracus)
  • Diagnosing a Compliance ‘Failure’ – http://bit.ly/1g1UAgi (Michael Volkov)
  • Do You Know What Your Third Parties Are Up To? http://bit.ly/1aN8hjr (Richard Chambers)
  • Five Factors Often Overlooked When Conducting an Internal Investigation – http://bit.ly/1fcle29(Gina Simms)
  • Former Employee Had Valid Access, Not Guilty of Violating Federal & State Laws – http://bit.ly/1lG3iWs (Peter Vogel)
  • From Search Engines to Smartphones, Technology Gets a Privacy Overhaul – http://bit.ly/NoJ98g (Tom Simonite)
  • Information Governance – The Importance of Putting Your Data House in Order –http://bit.ly/1aCQZ8l (Judy Selby, James Sherer)
  • Inside: Communications with Boards of Directors Regarding Privacy and Information Security Governance – http://bit.ly/Nv6hlC (David Katz)
  • Limiting Litigation Costs – Don’t Overlook Your Legal Counsel’s Contribution to the Problem – http://bit.ly/1lG6dyu (Jason Shinn)
  • Nothing Personal: How to be Smart About Your BYOD Workplace Policy (And Why It Matters!) http://bit.ly/NsKrPF (Allison Alpert, Gordon Berger, Tracey Diamond, Cynthia Moir, Grant Petersen)
  • On Deck: The Cybersecurity Framework – http://bit.ly/1aGvWly (Eric Chabrow)
  • Proactive Cybersecurity: Reshaping the Way We Think About Data Breaches – http://bit.ly/1lG5MEb (Marshall Jackson, Alaap Shah) 
  • Regulations Top List of Concerns for 2014 – http://bit.ly/1ctxfj4 (Alexis Harrison)
  • ReInvent Law NYC Implores Lawyers to Embrace Change and Technology – http://bit.ly/1noVdB3 (Victor Li)
  • Richard Susskind Speaks on The Past, Present and Future of Artificial Intelligence in the Law – http://bit.ly/1dxxDwx (Colin O’Keefe)
  • The Master List of Third-Party Corruption Red Flags – http://bit.ly/NsExOI (Matteson Ellis)
  • The Right Medicine: Prescribing BYOD for Healthcare IT – http://tek.io/NxSxH1 (Will Kelly)
  • The Things That Keep GC Up At Night – http://bit.ly/1g1U0iC (Richik Sarkar)
  • The Trouble With Documents – http://bit.ly/NsFAxS (Timothy Cornell)
  • U.K. Releases Privacy Guidelines for Mobile App Developers – http://bit.ly/1noWl7F (Ieuan Jolly)

VendorClipsVendor Clips for eDiscovery Practitioners

Providing eDiscovery practitioners with a weekly overview of relevant legal technology news and announcements as shared by industry vendors and commentators.

Calendar-48x48Industry Conferences, Events and Meetings

Providing industry professionals a non-all inclusive listing of key industry educational conferences, events and meetings.

2014 eDiscovery Events

FEBRUARY

5th Annual Cloud Computing for DoD and Government
February 19-21, 2014
Washington, DC
Click here for more information.

MARCH

LegalTech Asia Summit
March 3, 2014
Hong Kong
Click here for more information.

E-Discovery Conference for the Small and Medium Case
March 14, 2014
University of Florida, Levin College of Law
Click here for more information.

2nd Annual New Zealand eDiscovery Conference
March 14, 2014
Auckland, New Zealand
Click here for more information.

Pharmaceutical & Medical Device Legal & Compliance Forum
March 24-25, 2014
Alexandria, VA
Click here for more information.

ABA TECHSHOW
March 27-29, 2014
Chicago, IL
Click here for more information.

APRIL

AIIM Conference 2014
April 1-3, 2014
Orlando, FL
Click here for more information.

2nd Annual Consortium on Litigation, Information Law and E-Discovery
April 20, 2014
New York, Chicago, San Jose
Click here for more information.

ACEDS 2014 E-Discovery Conference & Exhibition
April 27-29, 2014
Hollywood, FL
Click here for more information.

MAY

The 14th Annual Super Conference (Inside Counsel)
May 12-14, 2014
Chicago, IL
Click here for more information.

FOSE
May 13-15, 2014
Washington, DC
Click here for more information.

Access Data User’s Conference
May 13-16, 2014
Las Vegas, NV
Click here for more information.

 

For the latest eDiscovery news, visit ComplexDiscovery.

 As always, any comments, questions, suggestions to:

Background:

February 15th weekend e-discovery compendium: Ralph Losey takes “Minority Report” science to create smart data. Really smart data.
Source: original article
Author: posselist
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

Motion for Sanctions Denied Absent Evidence of Timing of Destruction to Establish Bad Faith – Electronic Discovery

Motion for Sanctions Denied Absent Evidence of Timing of Destruction to Establish Bad Faith

Sokn v. Fieldcrest Cmty. Unit School Dist. No. 8, No. 10-cv-1122, 2014 WL 201534 (C.D. Ill. Jan. 17, 2014)

Plaintiff argued that spoliation sanctions were warranted for Defendants’ destruction of relevant audio recordings of closed-session school board meetings in violation of the Illinois Open Meetings Act (“OMA”), the school board’s own document retention policies, and Illinois common law, but could not establish the timing of the at-issue destruction.  The court reasoned that the OMA did not impose a specific duty to preserve for purposes of litigation (“and certainly not for this specific litigation”) and declined to impose sanctions where bad faith could not be established absent evidence of when the tapes were destroyed.

Summarizing broadly, Plaintiff, a former elementary school principal, filed a discrimination suit against the school district and sought production of audio recordings of closed-door school board sessions in which matters relevant to Plaintiff’s causes of action were discussed.  The court acknowledged that it appeared that relevant discussions occurred in an unknown number of meetings “[b]etween May 1, 2007 and January 1, 2009.”  According to the court, Defendants should have anticipated a potential lawsuit on March 24, 2010, when Plaintiff notified them that she believed she had been the victim of disparate treatment based on her gender.

Per the school district’s own policy, the at-issue tapes were to be maintained for at least eighteen months and could be destroyed only after a vote by the school board to approve the destruction.  “The Policy seems to [have been] designed to fulfill the requirements of the Illinois Open Meetings Act . . . .” Despite the policies for preservation, an unknown number of recordings were destroyed without a vote.  The exact date of the destruction was unknown.

Plaintiff contended that the destruction occurred when litigation was “either on file [or] reasonably foreseeable, or when a reasonable person would have foreseen that the audio recordings were material to a potential civil suit” and that the recordings may also have been destroyed less than eighteen months after their creation.  Plaintiff sought default sanctions.

The court’s analysis initially focused on the question of whether violations of the OMA and the district’s own retention policy were sufficient to impose sanctions.  Regarding violation of Illinois common law, the court noted that the issue was not argued before the magistrate judge (who denied Plaintiff’s motion initially), and addressed the common law obligation to preserve only briefly, as discussed below.  Regarding the question of the duty to preserve pursuant to the OMA, the court reasoned:

The existence of a general duty to preserve is not the proper prerequisite for assessing sanctions in federal court though. The duty to preserve at issue must relate directly to the litigation itself. See Trask–Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir.2008) (“[C]ourts have found a spoliation sanction to be proper only where a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent.”). This is important. The OMA imposes a general duty to preserve audio recordings of closed session meetings, not a specific duty to preserve evidence for litigation, and certainly not for this specific litigation. FN8

“Moreover,” the court reasoned, “bad faith is a prerequisite to imposing sanctions for the destruction of evidence.” (Emphasis added.)  The court went on to explain:

Regardless of the general duties to preserve provided by the OMA and the school district’s policy, for purposes of sanctioning conduct, the Court must be able to determine whether the Defendants destroyed the tapes in order to hide information from the Plaintiff. If the tapes were destroyed before the Defendants had a reasonable indication of potential litigation with Plaintiff, then it is substantially less likely the destruction was done to hide discoverable information from the Plaintiff. In such a case, the Court will not infer bad faith. If, however, the tapes were destroyed after the Defendants had a reasonable indication of potential litigation with Plaintiff, then it is substantially likely the destruction was done to hide information from the Plaintiff. If this were the case, the Court would infer bad faith.

As stated previously, however, it could not be established when the tapes were destroyed.

Plaintiff argued that “she should not be burdened with showing when the actual destruction of the tapes occurred” and cited two cases in support of her position.  The court distinguished those cases, however, and explained that “Plaintiff must be able to point to something for which the court can conclude not just that general duties were violated, but that specific duties to preserve were violated in bad faith.”

The court also distinguished those cases upon which Plaintiff relied for the proposition that “destroying records in violation of the OMA in and of itself constitutes bad faith.”  The court concluded that absent evidence of when the tapes were destroyed it would be “improper to award sanctions for the spoliation of evidence based upon the mere speculation that the evidence must have been adverse to Defendants.”

Addressing Plaintiff’s arguments regarding Illinois common law, the court reasoned that the issue of the timing of the destruction would again be a key factor in the analysis where the common law duty to preserve was “not some generalized duty to preserve, such as the duty provided by the OMA, but a duty to preserve that arises in direct relation to the pendency of potential litigation.”  Thus, absent such evidence, the court concluded that sanctions were “not appropriate under these circumstances.”

A copy of the court’s opinion is available here.

Background:

Motion for Sanctions Denied Absent Evidence of Timing of Destruction to Establish Bad Faith
Source: original article
Author: K&L Gates
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

Top 5 Most Beloved Blogs from the Last Year | Happy Valentine’s Day from D4 – Electronic Discovery

Top 5 Most Beloved Blogs from the Last Year | Happy Valentine’s Day from D4

Our most beloved blogs from the last year pertain to best practice tips from Counsel and subject matter experts on email retention policies, preservation of evidence, litigation readiness and data security.  Feel the love….

Top 5 Most Beloved eDiscovery and Litigation Support Blog Posts from the Last Year

 

Background:

Top 5 Most Beloved Blogs from the Last Year | Happy Valentine’s Day from D4
Source: original article
Author: d4admin
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

EDRM Update – January 2014 – Electronic Discovery

EDRM Update – January 2014

EDRM Update

Welcome to the January 2014 issue of EDRM Update!

Issue 5 – January 2014

2014 is in full swing and the EDRM community is as busy as ever.

An updated Collections Standards was released this month, and we’ll soon be announcing an updated Privacy and Security Risk Reduction Model as well. Thank you to the working groups who contributed to the continued development of both these important resources.

EDRM hosted two more webinars this month, both of which were well attended and continue to see viewership online. Thank you to our January webinar sponsors, Nuix and Access Data, for sharing their knowledge and insights. If your organization is looking for affordable, professionally-managed webinars that attract good attendance, look no further than EDRM. Contact one of us for more information.

George Socha & Tom Gelbmann


January 2014 Highlights

The EDRM Budget Calcuators, published in November 2013, have been popular – so far over 300 people have downloaded the calculators we have made available. Comments have been positive, such as, “…These cost calculators will help clients understand the “ballpark” costs before reaching out to service providers.”

We updated the EDRM Collections Standards on January 16 in response to feedback posted at EDRM.net.

On January 23, we hosted a webinar, “Evolving eDiscovery Workflows for the Future,” sponsored by Nuix.

On January 30, we hosted a webinar, “Tales from the Trenches: Blue Shield In-House Team,” sponsored by AccessData.


In the EDRM Pipeline

The Data Set group is preparing an update to the Privacy & Security Risk Reduction Model in response to public feedback.

The IGRM group and CGOC are preparing a white paper on information governance and the disposition of data.

The Search group is preparing the release of its Search Intent Framework.


Member Profile of the MonthIrvin2

Reed Irvin, Senior Vice President, Product Development, Viewpointe

EDRM Member since 2007

EDRM Projects & Committees: I started with the Evergreen project and was a founding co-chair of the IGRM in 2010.  I currently co-chair the IGRM (Information Governance Reference Model).

Why I’m an EDRM member: EDRM membership offers an invaluable opportunity for collaboration among two typically separated groups – vendors and practitioners.  The unique open forum allows for discussion of market trends and challenges while putting aside competitive and individual agendas in order to drive the industry forward.  And the formation of the IGRM in 2010 is a perfect example of EDRM participants working together as thought leaders to respond to an essential industry evolution.


Welcome New Members!

Welcome to our newest EDRM members. We look forward to their participation and contributions.

Organizational members:

Individual members:

  • Evan Benjamin (Bryan University student)
  • Adrienne Johnson
  • David Kittrell
  • Johnny Lee
  • Nancy Regula (Bryan University student)

For a complete list of organizational members, click here. For a complete list of individual members, click here.


Welcome New Model Code of Conduct Subscribers!

Welcome to our newest EDRM Model Code of Conduct subscribers, bringing the total number of subscribing organizations to 80 and subscribing individuals to 22:

Organizational subscribers:

Individual subscriber:

  • Serge Tremblay

Voluntary registration as a MCoC subscriber indicates that the subscriber pledges to adhere to the principles, corollaries and guidelines set forth in the MCoC. For the complete list of subscribers, click here. To subscribe to the MCoC, click here.


Upcoming EDRM Events

March 14 2014 EDRM and University of Florida Levin College of Law E-Discovery Conference more
April 23-24 EDRM Kickoff Meeting

Background:

EDRM Update – January 2014
Source: original article
Author: Tom Gelbmann
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

EDRM Introduces Updated Privacy & Security Risk Reduction Model – Electronic Discovery

EDRM Introduces Updated Privacy & Security Risk Reduction Model

Revised framework provides a tested, methodical approach to data cleansing and the defensible handling of highly sensitive information

Saint Paul, Minnesota—February 13, 2014—EDRM, the leading standards organization for the e-discovery market, announces the reintroduction and refinement of its Privacy & Security Risk Reduction Model (PSRRM). Initially introduced in September 2013 and developed by EDRM’s Data Set group, the model provides a process for reducing the volume of private, protected and risky data by using a series of steps applied in sequence as part of the information management, identification, preservation and collection phases of the Electronic Discovery Reference Model.

High risk data can cause significant trouble and exposure for organizations today, as evidenced by the recent Target and Neiman Marcus data breaches. To help companies address this exposure in an organized and systematic manner, EDRM has revised the PSRRM to include industry feedback and real-world experiences using the model in data remediation and e-discovery projects.

The updated PSRRM provides a framework for ongoing iterative risk reduction. The model is a step-by-step guide to addressing highly sensitive data including personally identifiable information, proprietary data and privileged communications. Implementation of the model helps to reduce risk and establishes a repeatable and defensible process for handling private and protected data.

To learn more about the PSRRM or any other EDRM framework, visit EDRM.net.

About EDRM
EDRM creates practical resources to improve e-discovery and information governance. Launched in May 2005, EDRM was established to address the lack of standards and guidelines in the e-discovery market. In January 2006, EDRM published the Electronic Discovery Reference Model, followed by additional resources such as IGRM, CARRM and the Talent Task Matrix. Since its launch, EDRM has comprised 268 organizations, including 172 service and software providers, 68 law firms, 3 industry groups and 24 corporations involved with e-discovery and information governance.

Contact
Tom Gelbmann
EDRM, LLC
Ph: 651-483-0022
Email: tom@gelbmann.biz

Background:

EDRM Introduces Updated Privacy & Security Risk Reduction Model
Source: original article
Author: George Socha
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

Summation Gets an A – Electronic Discovery

Summation Gets an A

Today Brett Burney, one of the original “Summation old timers” (proof:  he knows what E-Loader Lite is) reviewed Summation 5 in Law Technology News.  Burney deemed Summation “a completely new platform that competes with the most sophisticated processing and review tools on the market today,” citing its powerful processing engine (FTK-based), robust advanced search capabilities and the useful  (and unique)  word-processing style redaction. Brett was also impressed with and pretty excited about the what he called AccessData’s “remarkable step of marrying their premiere FTK forensic technology with the Summation document review platform,” – a step which we at AccessData are also pretty excited about.  Summing up, Burney called Summation “impressive,” and “crammed full with just about every modern e-discovery tool and feature you could desire in an e-discovery processing and document review platform,” admitting that he didn’t even have time to review Summation’s built in predictive coding tools and off-line/mobile capabilities.

But don’t take our word for it, read Summation’s glowing review yourself!

The post Summation Gets an A appeared first on eDiscovery Insight.

Background:

Summation Gets an A
Source: original article
Author: Caitlin Murphy
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

On the #AIIM14 #InfoChaos Hot Seat — Sean Nathaniel from @UplandSoftware – Electronic Discovery

On the #AIIM14 #InfoChaos Hot Seat — Sean Nathaniel from @UplandSoftware

Sean-pic

As we start to think about #AIIM14, Here are the three questions I'm asking all the sponsors…

  1. What are the three most important business problems related to Information Chaos facing YOUR customers?
  2. What do you see as the three most important trends related to Information Chaos facing organizations over the next 18-24 months?  What will be different in our industry two years from now?
  3. What are the three most important things attendees should know about your company?

So here goes short interview #3, with Sean Nathaniel, VP of Technology at Upland Software and General Manager of FileBound by Upland.

What are the three most important business problems related to Information Chaos facing YOUR customers?

  1. The legacy solutions are not solving the content chaos, they are contributing to it. When software is hard to use or not made accessible to everyone in the organization, users will work around it.
  2. Content chaos can only be controlled by strong, flexible and agile workflow to process the content. Our customers not only want superior workflow functionality to ensure process consistency and efficiency, they also need to be able to react quickly to market changes or changes in how the business operates. And they need this robust capability to be elegantly simple.
  3. The changing workforce requires proven Cloud solutions to manage the content chaos. It’s not about Millennials vs. The Rest of Us. We see clear trends such as geographically dispersed and mobile workforces, cross-departmental collaboration and an increased amount of work done by contractors. Our customers address these challenges by building cloud solutions that are easily accessed from anywhere and any device and require minimal training.

What do you see as the three most important trends related to Information Chaos facing organizations over the next 18-24 months?  What will be different in our industry two years from now?

  1. Transforming how work gets done will require Cloud-native solutions with proven security, scalability and availability. As cloud solutions continue to gain acceptance and increase market share, it will become clear which solutions are truly built to deliver enterprise functionality and performance in the Cloud. Legacy solutions that jumped on the Cloud bandwagon won’t survive this shift.
  2. The way work gets done is changing, and mobile capabilities from native mobile applications and responsive web applications that work on any device, anywhere are critical. BYOD is here and users will not tolerate having to go through separate steps to accommodate all of the devices in the enterprise.
  3. Managing the content is the past; the future is about freeing content through solutions that enable content process automation. Users aren’t focusing on “document processing;” they want to know how they are going to get their work done. The companies in our industry that will thrive two years from now are the ones that make it easy for users to see what needs to be done – and do it. At the same time, management will require easy-to-use analytical tools that don’t require a SQL DBA to see how the business is doing.

What are the three most important things attendees should know about your company?

  1. FileBound is a Cloud-native process automation solution and has a large base of companies from the small to mid-size enterprise to companies in the Fortune 50 using FileBound Cloud.
  2. FileBound is completely focused on workflow process automation that enables companies to eliminate the content chaos.
  3. FileBound’s strength is delivering robust capability through simple elegance, which is why enterprises large and small are implementing FileBound, often replacing outdated or complicated legacy solutions. Whether it’s document management, workflow process automation, business analytics, intelligent forms or system integration, FileBound is the right solution for the enterprise and delivers immediate ROI.

—–

Register for #AIIM14 HEREhttp://www.AIIMConference.com

New this year! Co-located with #AIIM14 — Register HERE for #SPEF14 (for Service Companies, SIs, BPOs, and VARs)

#AIIM14 - AIIM Conference

Topics: infochaos

Background:

On the #AIIM14 #InfoChaos Hot Seat — Sean Nathaniel from @UplandSoftware
Source: original article
Author: John Mancini
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.