Want to know why litigation is increasingly expensive and complicated? Take a look at eDiscovery costs. Thanks to a recent federal Appeals Court ruling, Vinter v. Gallo, we get a clear look under the hood to find out what parties are being charged for eDiscovery services in a fairly routine infringement suit. The original suit has been settled, but the defendant Gallo submitted a $111,047.75 bill for eDiscovery costs in the matter that included included:
• $71,910 for flattening and indexing ESI
• $15,660 for Searching/Review Set/Data Extraction
• $178.59 for Tiff Production and PDF Production
• $74.16 for electronic Bates Numbering
Post-trial wrangling over costs is an arcane and difficult area of law. But it doesn’t have to be. According to the existing federal law, parties can claim the costs of converting electronic files to non-editable formats, and transferring files onto CDs were taxable as “costs of making copies of any materials.” In other words, they can reclaim the cost of making copies, but not the cost of processing evidence.
Following the Third Circuit in Race Tires America, Inc. v. Hoosier Racing the district court said Gallo, “may not receive reimbursement for any other ESI-related expenses,” and found that, in this case, “the only tasks that involve[d] copying [we]re the conversion of native files to TIFF and PDF formats and the transfer of files onto CDs” and awarded only $218.59 in ESI-related costs. Read More >
Google, the company that keeps track of everything people search for on the Internet, doesn’t want you to know how they search for information. At least, that’s what is happening in the ongoing Apple v. Samsung, saga, where Google—a non-party in the case—has been ordered to reveal the search terms it has used to find documents related to the matter.
Google’s search technology is one of the most closely guarded secrets in the business world. So it’s not really surprising that it is putting up a bitter fight in court to keep its search strategies under wraps. Apple attorneys want to know how Google found the documents it has produced for this intellectual property matter after being underwhelmed by the volume and quality of the information Google has produced. According to the court’s order, Apple argued for the production of Google’s search terms and custodians in order “to know how Google created the universe from which it produced documents.” The court noted that Apple sought such information “to evaluate the adequacy of Google’s search, and if it finds that search wanting, it then will pursue other courses of action to obtain responsive discovery.”
The Magic Bullet is a Blank
eDiscovery pundits like to think that they can just throw new search technology at data sets and magically retrieve all of the relevant documents in a matter. Everyone hopes through the magic of technology, machines will suddenly be able to review a collection of data and produce evidence to all parties. But lawyers should note that Google, the King of Search, relies on the of use of search terms to find data, not advanced algorithms and black box technology.
There are two important lessons in this ruling:
1. eDiscovery review is still dependent on good search terms. Even Google, the world’s most successful search company can’t find everything if it uses inadequate search terms.
2. Open and transparent search and review processes is essential to meaningful, cost-effective discovery. The court, citing the precedent DeGeer v. Gillis, noted, “[s]electing search terms and data custodians should be a matter of cooperation and transparency among parties and non-parties.”
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We get it. Social media is not something most lawyers think about every day. According to the most recent ABA Legal Technology Survey Report, only 11 percent of attorneys use Twitter professionally. But as social media is now central to more and more matters, lawyers need to think about the ways Facebook, Twitter, and other sites affect their case, or suffer irreparable damage. Here are the most common social media mistakes, oversights, and blunders that could destroy your case— or even put you and your client in danger of sanctions or jail.
1. Leaving Social Media in the Hands of Your Client.
Alcohol makers tell their customers to give up their car keys. Lawyers need to take their clients’ social media keys.
In the recent case Gatto v. United Air Lines, Inc., (D.N.J. Mar. 25, 2013) the court sanctioned a plaintiff for deactivating and deleting his Facebook account. The important question is, why was this man still using his Facebook account? The parties had established it was going to be an important piece of evidence in this matter, so why didn’t they make a forensic copy of the data?
According to the court ruling, this is how the parties planned to conduct their social media discovery: the plaintiff agreed to change his account password to “alliedunited” (the corporate names of the defendants) and and turn the login information over to opposing counsel. However, the plaintiff claimed he didn’t think that would mean anyone would actually be accessing his account, and couldn’t figure out why someone else was logging into his Facebook page. Instead of changing the password or trying to figure out what was going on, he deleted the entire account.
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Nextpoint is a trial company at heart, so we love powerful graphics that make your case. We’ve been talking for years about why its important that our services are cloud-based, Software-as-a-Service applications, but it’s not easy to explain succinctly. Here’s one of the few great graphics we’ve found that illustrates the issue clearly.
As more eDiscovery software companies jump on the cloud bandwagon, it’s hard to separate what is a true, Software-as-a-Service cloud application, or to explain what the heck Infrastructure-as-a-Service or Platform-as-a-Service means. Kevin Remde, a technology evangelist at Microsoft published this nifty chart that breaks it all down.
The range of options runs from old-fashioned client-server software that demands an experienced, in-house IT staff, to services that offer some infrastructure, all the way to Software-as-a-Service (SaaS). As Kevin puts it, SaaS should require no “maintenance or updates or hardware other than your connectivity to the online service you’re purchasing.” That’s what we believe every law firm should look for in cloud software.
We at Nextpoint pay Amazon Web Services to use their infrastructure, and then we build out the rest of the software, features, and functionality on top of that. All you have to do is sign up, sign in, and start using the service. We offer training to help new users learn to take advantage of the service, but after that, the software is there for you to use as needed.
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We’ve been saying this for years, but not everyone was ready to listen — social media is now an essential part of litigation. In case you still have some doubts, the courts have now made it abundantly clear that a failure to archive Facebook and other social media content is a sanctionable offense. It will kill your case and destroy your client’s chance for justice.
Recently, we commented on an employment dispute, EEOC v. The Original Honeybaked Ham Co. of Georgia, Inc., in which the court hammered a federal agency for failure to produce social media in a timely manner. Now, in a Gatto v. United Air Lines, Inc., (D.N.J. Mar. 25, 2013) the court has sanctioned a plaintiff for deactivating and deleting his Facebook account despite a clear duty to preserve it.
As part of a personal injury suit, the plaintiff turned over passwords and login information to his Facebook account to opposing counsel. However, after opposing counsel logged into the account they found that the plaintiff had deactivated the account. He tried to claim that he had been involved in a contentious divorce and was afraid that someone who didn’t like him was hacking into his account. After 14 days, Facebook obliterated all data from a deactivated account, as is their policy. However, the court was not buying the angry ex-wife excuse, and issued an adverse inference against Plaintiff for failing to preserve his Facebook account and intentional destruction of evidence.
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If companies have one complaint about eDiscovery case law, it’s that they are forced to preserve too much data for litigation. In 2011, Microsoft estimated that the ratio of the data it preserves to the data it actually uses in litigation is 340,000 to one. That’s why defining the duty to preserve documents in litigation is a big concern to corporate general counsels. Until recently, the duty to preserve was pretty clear — the moment litigation is possible, your company should stop automated destruction policies and begin preserving all potentially relevant information from relevant parties.
However, that standard is shifting for the first time in a decade. The groundbreaking UBS v. Zubulake case in the early 2000′s is still the most important precedent in this area. In a series of five separate rulings across hundreds of dense pages of balancing tests, U.S. District Judge Shira A. Scheindlin outlined what electronic evidence was discoverable in in litigation. (Judge Scheindlin also tightened and updated on that standard in Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010). Those cases, and many others that followed, held that the duty to preserve documents, including electronically stored information (ESI), arises when litigation is ”reasonably anticipated.”
For the most part, courts still follow the Zubulake and Pension Committee standard closely. For example, in Voom HD Holdings, LLC v Echo Star Satellite LLC , (N.Y. App. January 31, 2012) New York State Court’s First Appellate Department applied Sheindlin’s Zubulake standard almost word for word.
A Crack in the Foundation
However, in Chin v. Port Authority of New York and New Jersey, (2d Cir. July 10, 2012) the Second Circuit softened the standard a bit, arguing that a failure to preserve evidence as soon as litigation is likely is not always immediately sanctionable. The case pits several Asian Americans police officers against the Port Authority of New York in an employment discrimination based on race. During discovery, the plaintiff found that the Port Authority had destroyed human resources records regarding promotions even though litigation was imminent. In the past, the Zubulake standard would have almost certainly meant immediate sanctions were warranted. But because the files were considered relatively unimportant, the court reasoned sanctions were not necessary. Read More >