The recent dramatic District Court order in Small v. University Medical Center highlights the importance of due diligence and care in preservation, collection and production of ESI and the extreme risks that arise when failures occur in preservation, collection and production. The decision details a host of discovery failures and omissions committed by the defendant including failing to preserve network shares, laptops and mobile devices utilized by the majority of relevant custodians.
The defendants in this Fair Labor Standards Act class action had received a preservation notice at the start of the action directed at both hard copy and electronically stored documents. Apparently, the defendant’s legal hold policy didn’t address electronic records in any way, because the testimony recounted in the decision demonstrates clearly that the hold notice was never put in front of the IT department until it was far too late.
The ownership of the devices and drives varied – some were corporate-owned devices, others were personal devices used for business purposes. Ownership, however, was ultimately irrelevant to the preservation obligation – defendant was held to be responsible for preservation of those personal devices, as it permitted employees to use them for business purposes.
The court found that the preservation failures irreparably prejudiced the plaintiffs, who as a result lacked vital responsive material such as various iterations of relevant corporate policies as well as text messages to and from key custodians. The failure to preserve these vital information sources was so egregious, the court held, as to merit sanctions…but not any old sanctions – this court actually entered a judgment in favor of the named plaintiffs as a result of the defendant’s discovery failures and abuses.
By any standard, entry of judgment is an extreme measure – in effect, this is a determination that the Defendant’s actions muddied the evidentiary waters so completely that a determination of the merits of the case was no longer necessary.
As extreme as this measure may be, its imposition is premised on the Defendant’s conduct. The emphasis on communication and cooperation that permeates recent discovery-related decisions is present here. “Counsel and parties” the court noted, “have duties to clearly communicate, cooperate in the discovery process, and undertake an adequate investigation of facts before making representations. These duties arise irrespective of whether relevant evidence is electronic or non-electronic.”
Moreover, the court added a wake-up call for attorneys and others involved with preservation and compliance, imposing a duty to fully understand the role of electronically stored information such that it may be properly preserved and produced. “Ignorance of technology,” said the court, “does not excuse counsel or clients from their duties to preserve and produce ESI.”
Insight on law and technology.
Tuesday, September 16, 2014
Monday, September 8, 2014
Preservation and Collection In The Evolving Data Landscape: Cloud, Mobile and BYOD
EDiscovery begins with preservation and collection. Errors and omissions in preserving and collecting data create the greatest risk of spoliation and sanctions than any others, because when data is missed at the source it may never be collected or, worse, it may disappear. If an adverse party, agency or court then identifies the collection gap later, the results can be disastrous.
When the eDiscovery industry began to evolve from the seeds of the litigation support industry which had provided processing for paper records, preservation and collection began, naturally, with PCs and servers. Virtually all electronic records would be found on a network resource or a user’s local PC. Fear of sanctions resulted in broad retention policies, which in turn gave rise to enormous data stores which then needed to be culled and processed for litigation.
The high cost of handling these data stores caused corporations to get serious about retention policies and litigation holds, in order to ensure that necessary data was preserved and junk wasn’t. This meant that collection efforts were carefully targeted so that only the data that was actually needed was harvested for processing and review. The common practice evolved – relevant custodians were identified, then their PC’s were imaged and network email was preserved. In most cases, that sufficed as an exemplary collection process.
Fast forward to 2014. Most of us still do use PC’s, and most corporations do still have networks and email servers, but those devices really aren’t where most of us live our electronic lives. Most of our activity takes place on our phones and our tablets. That’s where we email, where we text, and where we network. That’s where we take our photos and our notes and even our entertainment. On an average day, most of us use our phones far more than our desktops or laptops. Business communication occurs principally on our phones and only secondarily elsewhere.
In addition, the “cloud” has evolved into a leading data store and source, for both individuals and businesses. Most of us have a cloud-based email account and at least some documents and photos stored in the cloud. Business use of the cloud continues to evolve and grow and supplant traditional LAN-based storage models.
A key factor here, as well, is the growth of Bring Your Own Device (“BYOD”) policies, in which employers allow or even encourage employees to use their personal devices for business purposes. Those diverse devices then come to hold discoverable information subject to preservation and production obligations, making them targets for collection in the eDiscovery context.
These developments have indelibly altered the data landscape for eDiscovery. PC’s and servers are still relevant, but they’re not where the true action is. Any effective collection effort needs to target phones, tablets and relevant cloud-based resources in order to be complete and ensure that gaps won’t be revealed later, bringing the risk of sanctions, adverse inferences, and all the other consequences of incomplete production and compliance.
When the eDiscovery industry began to evolve from the seeds of the litigation support industry which had provided processing for paper records, preservation and collection began, naturally, with PCs and servers. Virtually all electronic records would be found on a network resource or a user’s local PC. Fear of sanctions resulted in broad retention policies, which in turn gave rise to enormous data stores which then needed to be culled and processed for litigation.
The high cost of handling these data stores caused corporations to get serious about retention policies and litigation holds, in order to ensure that necessary data was preserved and junk wasn’t. This meant that collection efforts were carefully targeted so that only the data that was actually needed was harvested for processing and review. The common practice evolved – relevant custodians were identified, then their PC’s were imaged and network email was preserved. In most cases, that sufficed as an exemplary collection process.
Fast forward to 2014. Most of us still do use PC’s, and most corporations do still have networks and email servers, but those devices really aren’t where most of us live our electronic lives. Most of our activity takes place on our phones and our tablets. That’s where we email, where we text, and where we network. That’s where we take our photos and our notes and even our entertainment. On an average day, most of us use our phones far more than our desktops or laptops. Business communication occurs principally on our phones and only secondarily elsewhere.
In addition, the “cloud” has evolved into a leading data store and source, for both individuals and businesses. Most of us have a cloud-based email account and at least some documents and photos stored in the cloud. Business use of the cloud continues to evolve and grow and supplant traditional LAN-based storage models.
A key factor here, as well, is the growth of Bring Your Own Device (“BYOD”) policies, in which employers allow or even encourage employees to use their personal devices for business purposes. Those diverse devices then come to hold discoverable information subject to preservation and production obligations, making them targets for collection in the eDiscovery context.
These developments have indelibly altered the data landscape for eDiscovery. PC’s and servers are still relevant, but they’re not where the true action is. Any effective collection effort needs to target phones, tablets and relevant cloud-based resources in order to be complete and ensure that gaps won’t be revealed later, bringing the risk of sanctions, adverse inferences, and all the other consequences of incomplete production and compliance.
Wednesday, September 3, 2014
Five Signs Your eDiscovery Project Is In Trouble
You've compared pricing and capabilities and selected a vendor. You've sent your initial set of data. You've had your initial kickoff call. Now you can sit back and relax, right?
Wrong. Now comes the time when you need to become particularly vigilant. EDiscovery projects can go sideways in an infinite number of ways. The infinite variety of data in the world renders it inevitable that eventually everyone will encounter something anomalous.
Even the best vendors do make mistakes, and your ability to identify them will help you address them in a timely way. Recognizing the warning signs is your most important tool for anticipating issues and problems. Look for these five harbingers of trouble and you'll know when to press for information and results so you can manage effectively.
1. Repetitive Questions. Any time your vendor asks you the same question more than once it's a bad sign. Someone hasn't properly memorialized your answer or they simply weren't listening in the first place. Either way, it should make the hair on the back of your neck stand up. When you find yourself saying the same things again and again, it's a good idea to ask for specific confirmation of all your specs and requests.
2. Slow Responses. When you ask a question you deserve a speedy response. Delayed responses suggest that your project manager is overworked or inattentive, neither of which is a good thing. What's worse, though, is the possibility that a simple question can't be answered quickly because something has gone wrong. Press for timely answers and informative responses.
3. Amorphous Timelines. Upon receipt of data, your vendor should be able to give you a fairly precise timeline for delivery. When the timeline is vague, or when it seems to shift and evolve as days go by, you may begin to assume that something is wrong. Ask for precise turnaround times and hold your vendor to them.
4. Missing Data. When data is delivered you should take care to review the reports, the source information and the document counts and sizes. Most vendors have audit processes in place to ensure that no data is "missed," but there are often manual processes at work in this stage. Conduct your own mini-audit to ensure you know that all your data has been properly processed and delivered.
5. Anomalous Hit Rates. Take time to examine hit reports and rates for every custodian. Request delivery reports in the form of a time plot showing the distribution of documents over your relevant time period. Compare hit rates for custodians to identify custodians or periods of time that may have been omitted or missed in collection, processing or filtering. Ask your vendor to explain anything that doesn't "look right" in those reports.
These five warning signs can serve as simple guideposts as your project gets underway. Above all else, remember that for customers there are no "stupid questions" - any concern of yours should be treated with courtesy and respect and should merit a helpful answer.
Wrong. Now comes the time when you need to become particularly vigilant. EDiscovery projects can go sideways in an infinite number of ways. The infinite variety of data in the world renders it inevitable that eventually everyone will encounter something anomalous.
Even the best vendors do make mistakes, and your ability to identify them will help you address them in a timely way. Recognizing the warning signs is your most important tool for anticipating issues and problems. Look for these five harbingers of trouble and you'll know when to press for information and results so you can manage effectively.
1. Repetitive Questions. Any time your vendor asks you the same question more than once it's a bad sign. Someone hasn't properly memorialized your answer or they simply weren't listening in the first place. Either way, it should make the hair on the back of your neck stand up. When you find yourself saying the same things again and again, it's a good idea to ask for specific confirmation of all your specs and requests.
2. Slow Responses. When you ask a question you deserve a speedy response. Delayed responses suggest that your project manager is overworked or inattentive, neither of which is a good thing. What's worse, though, is the possibility that a simple question can't be answered quickly because something has gone wrong. Press for timely answers and informative responses.
3. Amorphous Timelines. Upon receipt of data, your vendor should be able to give you a fairly precise timeline for delivery. When the timeline is vague, or when it seems to shift and evolve as days go by, you may begin to assume that something is wrong. Ask for precise turnaround times and hold your vendor to them.
4. Missing Data. When data is delivered you should take care to review the reports, the source information and the document counts and sizes. Most vendors have audit processes in place to ensure that no data is "missed," but there are often manual processes at work in this stage. Conduct your own mini-audit to ensure you know that all your data has been properly processed and delivered.
5. Anomalous Hit Rates. Take time to examine hit reports and rates for every custodian. Request delivery reports in the form of a time plot showing the distribution of documents over your relevant time period. Compare hit rates for custodians to identify custodians or periods of time that may have been omitted or missed in collection, processing or filtering. Ask your vendor to explain anything that doesn't "look right" in those reports.
These five warning signs can serve as simple guideposts as your project gets underway. Above all else, remember that for customers there are no "stupid questions" - any concern of yours should be treated with courtesy and respect and should merit a helpful answer.
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