Weekly Trends Report – 11/14/2019 Insights

Insight into where e-discovery, information governance cybersecurity, and digital transformation are heading – who is doing what now or in the future, what works and what doesn’t, and what people wish they could do but can’t – gleaned from recent publications

ABOVE THE FOLD

BDO knows CCPA – BDO’s California Consumer Privacy Act resource page enables privacy executives to stay abreast of the impending regulation and learn about overarching privacy and governance considerations in one convenient location.

ELECTRONIC DISCOVERY

Text Analytics Forum highlights – Bill Dimm of Clustify gave highlights from the Nov. 6-7 Text Analytics Forum, now part of the KMWorld conference, as well as a link to most of the slides used at the forum.

E-Discovery Day activities – Dec. 4 is E-Discovery Day. Check the E-Discovery Day for webinars and other events. If the past is a guide, activities will continue to be added until day of.

CYBERSECURITY & DATA PRIVACY

CCPA goes nationwide? – Elizabeth Montalbano of Threatpost reported that Microsoft is extending the CCPA to all its users in the United States. That, she wrote, means that as a practical matter the California law will apply throughout the United States.

Data protection and privacy commissioners meeting recap – Alan Charles Raul of Sidley offered observations from the 41st Annual International Conference of Data Protection and Privacy Commissioners, which took place on Oct. 23-24 in Albania.

German DPA GDPR readiness audit results – Sven Schonhofen and Thomas Fischl summarized the findings of an audit that the Lower Saxony Data Protection Authority conducted of 50 large- and medium-sized organizations with respect to their implementation of GDPR requirements since June 2018. The DPAs report is available in German here.

E-DISCOVERY CASE LAW

Recent e-discovery decisions

10/7/2019 – U.S. Magistrate Judge Mitchell Dembin denied plaintiff’s motion to compel defendants to use certain search terms to examine electronic files of certain alleged custodians. The parties had a “general agreement” to generally follow the Model Order Governing Discovery of Electronically Stored Information in Patent Cases appended to Patent Local Rules of the Court. No party files the Model Order or any ESI order in this matter. The Judge wrote that had the parties proposed using the Model Order, he would not have endorsed it as it is flawed as it pertains to production of email. It requires that the requesting party identify custodians and search terms and limits the requesting party to identifying five custodians and five search terms per custodian. These requirements are inconsistent with FRCP 34 and the Sedona Principles. FRCP 34 does not require that a requesting party identify custodians or search terms. Sedona Principles 1, 3 and 6 have responding parties determine the procedures, methodologies and techniques appropriate for preserving and production their own ESI, with the parties working to reach agreement. In addition, noted the Court, the Model Order is obsolete in its reliance on search terms as the sole tool for identifying responsive ESI. The Court stated that it would not decide whether the proposed custodians are appropriate not decide which search terms should be used. Rather, plaintiff must request information, and defendants must address those requests as required by Rule 34. NuVasive, Inc. v. Alphatec Holdings, Inc., Case No. 18-cv-0347-CAB-MDD (S.D. Cal. Oct. 7, 2019).

8/19/2019 – U.S. District Judge Xavier Rodriguez denied defendant’s motion to abate or strike plaintiff’s second motion for sanctions but prohibited plaintiff from using inadvertently produced attorney-client privileged documents for any other purpose and required their return; and granted plaintiff’s motion for sanctions, prohibiting defendant from asserting any comparative negligence defense in the case. Despite the Court’s encouragement, defendant had not requested an FRE 502(d) order. In its absence, the court applied a 502(b) analysis. 1: the documents were covered by an attorney-client privilege or work-product protection. 2: disclosure was inadvertent. 3: defendant took reasonable steps to prevent the disclosure. 4: defendant took reasonable steps to rectify the error. Accordingly, ruled the Court, defendant was entitled to claw back the documents it inadvertently produced. The inadvertently produced documents nonetheless could be used in analyzing plaintiff’s motion for sanctions, as not to allow that would encourage discovery abuse. The documents demonstrated that defendant failed to timely disclose individuals with knowledge of relevant facts and attempted to hide those persons from plaintiff, actions for which the Court ordered sanctions. In particular, defendant failed to take reasonable steps to preserve a video containing relevant content; the video could be restored or replaced; although plaintiff failed to establish defendant acted with intent to deprive her of the video, loss of the video meant plaintiff was prejudiced by not being to establish a key element of her claim. Bellamy v. Wal-Mart Stores, Texas, LLC, Civil Action No. SA-18-CV-60-XR (W.D. Tex. Aug. 19, 2019).

7/3/2019 – U.S. District Judge P.K. Holmes III granted in part and denied in part defendant’s spoliation motion and granted summary judgment. The Court found that plaintiffs intentionally spoliated evidence in bad faith but because the motion for summary judgment would be granted denied requested sanctions as moot. Plaintiffs initially produced only some of their responsive communications, producing the remainder only after a motion to compel. Plaintiffs, IT professionals, subsequently did not disclose that until discovery was nearly complete they had switched to a communication application designed to disguise and destroy communications. Based on plaintiffs familiarity with information technology, their reluctance to produce responsive communications, an initial misleading response that one of plaintiffs had no responsive communications, plaintiffs’ knowledge that they must retain and produce discoverable evidence, and the necessity of configuring the new communication application to delete text communications, the Court concluded that plaintiffs decided to withhold and destroy likely-responsive communications intentionally and in bad faith. Herzig v. Arkansas Foundation for Medical Care, Inc., No. 2:18-CV-02101 (W.D. Ark. July 3, 2019).

ANNOUNCEMENTS

ADDITIONAL ARTICLES

UPCOMING EVENTS

Conferences, webinars, and the like can provide insight into where e-discovery, information governance cybersecurity, and digital transformation are heading

11/14/2018-12/13/2019 EVENTS

SEE PAST WEEKLY TREND REPORTS

George Socha

Senior Vice President of Brand Awareness at Reveal

George Socha is the Senior Vice President of Brand Awareness at Reveal, where he promotes brand awareness, helps guide development of product roadmap and consults with customers on effective deployment of legal technology.

Named an “E-Discovery Trailblazer” by The American Lawyer, George has assisted corporate, law firm, and government clients with all facets of electronic discovery, including information governance, domestically and globally. He served clients in a variety of industries including pharmaceutical, energy, retail, banking and technology, among others. As a renowned industry thought leader, he has authored more than 50 articles and spoken at more than 200 engagements across the world on a variety of e-discovery topics. His extensive knowledge has also been utilized more than 20 times to provide expert testimony.

Co-founder of the Electronic Discovery Reference Model (EDRM), a framework that outlines the standards for the recovery and discovery of digital data, and the Information Governance Reference Model (IGRM), a similar framework specific to information management, George is skilled at developing and implementing electronic discovery strategies and managing electronic discovery processes.