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.
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).
|11/7/2019||IG||Legaltech News||Microsoft Unveils New Information Governance Tools as Regulatory Demands Grow||Victoria Hudgins|
|11/11/2019||IG||Legaltech News||Big Data Creates Big Problems: Organizations Mandating Data Minimization Efforts||Victoria Hudgins|
|11/12/2019||ED||Legaltech News||Sedona Working Group 1 Meeting Spotlights Key E-Discovery Cases from 2019||Philip Favro (Driven)|
|11/12/2019||ED||eDiscovery Daily Blog||You May Soon Be Told to “Go Jump in a Lake” for Your ESI: eDiscovery Trends||Doug Austin|
Conferences, webinars, and the like can provide insight into where e-discovery, information governance cybersecurity, and digital transformation are heading