e-Lessons Learned

Suppose you’ve got a business.  Not just any business, however, but a state-of-the-art business.  Not necessarily a business that sells state-of-the-art products or services, but a business that you run in a state-of-the-art manner.  Instead of carrying briefcases full of notes, you’ve got compact flash cards full of data.  You don’t even remember the cost of a first-class stamp because all of your correspondence is done by email.  You don’t have boxes and drawers full of hard files around the office because you’ve got everything stored and backed-up on hard drives and servers.  You don’t have a calendar on your desk because you’ve got your daily schedule synched to the Smartphone that never leaves your side.  You use every possible gadget to make sure that you are doing everything in the most technologically advanced and efficient way possible.

Now, think to yourself: What happens one day when your company winds up on the wrong end of a lawsuit?  Perhaps even a completely bogus, frivolous lawsuit.  Even if you know that you’ll end up victorious in the end, you might find yourself bogged down in an eDiscovery quagmire once you have to turn over all of your “documents” during discovery.   Continue reading »

Suddenly find yourself at the wrong end of a trade secrets litigation?  Heed this advice: When the court says “preserve,” that means documents, files, data, and BlackBerry^® smartphones.  Thus, be sure to instruct your clients not to wipe the memory from their BlackBerrys or other handheld devices before turning them in; or else, your client may be subject to sanctions.

The defendants in a trade secrets theft case learned this lesson the hard way when the District Court in Florida slapped them with sanctions after they turned in freshly “wiped” BlackBerrys.  The court interpreted the freshly sanitized BlackBerrys as evidence of bad faith that justified sanctions.  But you might be thinking: “A BlackBerry wiped clean? Who cares!  All the e-mails the other side could possibly want are readily available on the server.”  This type of thinking could get you in trouble.  Let’s see why.

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Fool me once, shame on you.  Fool me twice, more shame on you.  Fool me three times and you are in some hot water!  Regardless of whether you are (or represent) the plaintiff or the defendant, your discovery obligations are the same: Absent a valid, court-sanctioned objection, you must comply with your adversary’s discovery demands.

While electronically stored information (ESI) may be a rather esoteric concept for many of us (perhaps most), in the eyes of the law and the court, ESI is just as real as traditional paper documents; and one’s failure to search for and disclose ESI in a timely manner could lead to big problems for an attorney and the client.  In one case, it may have cost one company $25 million.

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Don’t take your discovery obligations lightly!  When your adversary requests documents from you during discovery, it becomes your obligation to undertake a thorough search of your files (electronic or otherwise) to locate those documents and produce them in a timely manner and in the format requested by your adversary.  Failing to do so could cost you more than $25 Million dollars, as it did to the plaintiff in B & G Management v. Lexington Insurance.  Can you afford that?

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Unfortunately, the key word search is ineffective for e-discovery.  A keyword search often misses many of the relevant documents.  However, the keyword search is the current standard for searches.

Does anything work short of hiring an expert?

Jason Baron and Doug Oard of the 2009 TREC Legal Track research team are addressing the many questions plaguing the field of E-discovery by testing the current E-discovery technology and various search methods.

With the help of lawyers, researchers, and scientists, the TREC researchers are seeking the perfect search for mining relevant e-discovery documents.

The shocking news – the technology tested from over 20 e-discovery vendors proved no better than Boolean keyword searches.   Continue reading »

When last we left our wily defendants, Gary Reynolds and Usenet.com had just been sanctioned for spoliation of evidence requested by the plaintiffs on numerous occasions. As an explanation for their failure to produce the evidence, Gary Reynolds had argued, in part, that relevant data had “expired off the system through normal system operational attrition.” That is, according to Reynolds, the destruction of data pertinent to their case was not a willful attempt to prevent the plaintiffs from obtaining the data. It was nothing more than the inevitable consequence of the limited storage space on his company’s computers. Continue reading »

Back in April, the founder of e-Lessons Learned, Fernando M. Pinguelo, sat down with Allison L. Brecher and Shawnna Childress to discuss their new e-discovery book eDiscovery Plain and Simple.  Now that the book has been officially released, we’d like to highlight it by posting Fernando’s interview along with a brief description of the book.

You can click here to read the book review/interview conducted by Fernando M. Pinguelo

Description from the Breacher/Childress web site: Continue reading »

While filing six different motions to mirror image a third party’s computer may make the senior partners at your firm really happy that you are bringing in the big bucks, unless you have discovered something that there was absolutely no way of knowing about previously, you should probably cut your losses and move on. The plaintiff in this case alleged that prior to Meesham Neergheen leaving Mintel; he emailed himself Mintel documents via his personal email account and was using these documents at his current employer Datamonitor.

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Background

In Zubulake I, Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003), Laura Zubulake was seeking evidence stored on UBS’s backup tapes. Retrieval of the evidence was going to be costly and time-consuming. The dispute in Zubulake I centered on which party should pay for the costs incurred in restoring and producing these backup tapes.

As part of the preliminary determination, the court ordered the UBS to produce, at its own expense, all requested emails existing on its optical disks, active servers, and five backup tapes as selected by the plaintiff. The court determined that only after the contents of the backup tapes were reviewed and the defendant’s costs were quantified, the court would conduct the appropriate cost-shifting analysis using a seven factor test.The seven factors elucidated in Zubulake I (in descending order of importance) included:

(1) the extent to which the request is specifically tailored to discover relevant information;

(2) the availability of such information from other sources;

(3) the total cost of production compared to the amount in controversy;

(4) the total cost of production compared to the resources available to each party;

(5) the relative ability of each party to control costs and its incentive to do so;

(6) the importance of the issue at stake in the litigation and;

(7) the relative benefits to the parties of obtaining the information.

Enter Zubulake III
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For those of you that have been living under an e-discovery rock, and therefore have never heard of Zubulake, please continue reading.

The Zubulake decisions in 2003 through 2004 shook the world of e-discovery. Litigators, law professors, and all kinds of pundits, tuned in and took notice: U.S. District Judge Shira Scheindlin, one of the most brilliant trial judges on the bench today, and unfortunately for UBS, an e-discovery expert threw the gavel at UBS on this one. Zubulake walked away from this case with close to $30 million and UBS was left with a deep hole and lots of sanctions.

But we are skipping ahead in our saga. The case started as a common gender discrimination suit brought by Zubulake against her former employer, UBS. Continue reading »