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Benchbook for U.S. District Court judges adds new section on e-discovery and jury instructions for jurors’ use of social media and electronic devices

The Federal Judicial Center recently published the Sixth Edition of the Benchbook for U.S. District Court Judges. For the first time, the Benchbook includes a section on civil case management, including how to address e-discovery issues. The Benchbook also adds new jury instructions regarding the use of social media and electronic devices by jurors during trials.

The updated Benchbook reflects the impact that technology and e-discovery are having on pretrial litigation and trials. Although the current draft amendments to the Federal Rules of Civil Procedure are still a ways off from being approved, the Benchbook has included recommendations for addressing e-discovery issues which incorporate key concepts found in those draft amendments as well as in existing local federal court initiatives.…

Don’t forget about e-discovery when moving to the cloud

As businesses move more applications and data to cloud services (e.g., Google Apps for Business,, Amazon S3, etc.), they inevitably are going to find themselves in litigation with the need to retrieve electronically stored information (ESI) from the cloud to comply with their e-discovery obligations. While the risks of e-discovery likely will not keep any businesses away from public cloud services altogether, businesses at least should plan for how they are going to meet the demands of e-discovery in the cloud when litigation arises.

Following are some tips on how businesses can manage their e-discovery risks if they are considering a move to a cloud or if they have already made the move.…

Facebook account deactivation leads to “spoliation instruction”

A federal court has ordered that “an instruction be given at trial to the jury that it may draw an adverse inference against Plaintiff for failing to preserve his Facebook account,” and for destroying evidence. See Gatto v. United Air Lines, Inc., No. 10-cv-1090, 2013 U.S. Dist. LEXIS 41909, slip op. at 11 (D.N.J. Mar. 25, 2013). The plaintiff did not just try to “clean up” his Facebook page; he permanently deleted it. According to the court, the permanent deletion of the plaintiff’s account prejudiced the defendants “because they have lost access to evidence that is potentially relevant to Plaintiff’s damages and credibility.”  Id. at 10.

Plaintiff Argued Permanent Deletion of His Facebook Account was “Accidental” In Gatto, the plaintiff alleged that he sustained permanently disabling injuries while working as a ground operations supervisor at JFK airport after an aircraft caused a set of fueler stairs to crash into him. The defendants sought discovery relating to the plaintiff’s damages and social activities, and the plaintiff provided the defendants with signed authorizations for the release of information from certain social networking sites and other online services like eBay and PayPal. The plaintiff did not include, however, an authorization for his Facebook account.…

$12.4 million in fees awarded for patent and trade secret claims brought in bad faith, including fees for “computer-assisted algorithm-driven document review”

A federal district court recently awarded more than $12.4 million in attorneys’ fees to the defendants as “prevailing parties” based on its finding that the plaintiffs had pursued objectively baseless patent and trade secret misappropriation claims in bad faith. [See Gabriel Technologies Corp. v. Qualcomm Inc., No. 08 CV 1992, 2013 U.S. Dist. LEXIS 14105 (S.D. Cal. Feb. 1, 2013)] As part of the award, the court awarded $2,829,349.10 in fees “attributable to computer-assisted, algorithm-driven document review” developed and employed by H5, which is an e-discovery vendor that obtained a patent last year on certain aspects of its technology-assisted review process. The court found that the method of document review used in the case reduced the overall fees and attorney hours incurred by the defendants and, therefore, found the requested amount of fees to be reasonable.

In Gabriel Technologies, the plaintiffs brought suit in 2008 against Qualcomm Inc. and an individual defendant asserting ownership rights in numerous Qualcomm patents related to GPS technologies. The suit arose out of events related to technology licenses and joint ventures between the plaintiffs, and their predecessor in interest, and the defendants dating back to 1998. The plaintiffs initially asserted 11 claims for relief, including breaches of a 1999 license agreement and a 2006 license agreement, fraud, tortious interference with contract, correction of patent inventorship, declaration of patent ownership, equitable patent infringement, trade secret misappropriation, conversion, unfair competition and unjust enrichment, and sought more than $1 billion in damages. Most of the plaintiffs’ claims …

Top 10 E-Discovery Developments and Trends in 2012

1. Federal and State Courts Issued Decisions Approving the Use of “Computer-Assisted Review” AKA “Predictive Coding” or “Technology-Assisted Review.” Last year, numerous e-discovery commentators and vendors published articles and on-line resources and held seminars explaining how “computer-assisted review” (also known as “predictive coding” or “technology-assisted review”) works and discussing the expected benefits of using computer-assisted review. EDRM, which previously published the Electronic Discovery Reference Model depicting the various stages of the e-discovery process, published a draft reference model describing the process of computer-assisted review. The draft model defined computer-assisted review as a “process of having computer software electronically classify documents based on input from expert reviewers, in an effort to expedite the organization and prioritization of the document collection.” The major steps in the process according to EDRM are: setting outcome goals; setting the protocol for training the software; educating the human reviewers; coding documents by human reviewers; predicting results by the software applying the coding decisions; testing results through statistical sampling; evaluating results and repeating the process if necessary; and achieving the goals of the review. Additionally, The Grossman-Cormack Glossary of Technology Assisted Review was published. The glossary attempts to provide “a common framework and set of definitions for use by the bar, the bench, and service providers.”

A study from the RAND Corporation grouped the costs associated with e-discovery into three main categories: collection (8% of costs); processing (19% of costs); and review (73% of costs). Based on its study, RAND believed that companies could lower the cost …

Discovery of Social Media Information is Subject to Same Rules as Paper Discovery

In a recent decision, a court in the Southern District of Ohio denied a motion to compel the plaintiff in an employment discrimination action to give the defendants her user names and passwords for each of the social media sites she uses. In Howell v. The Buckeye Ranch, Case No. 2:11-cv-1014 (S. D. Ohio Oct. 1, 2012), the court said “[t]he fact that the information defendants seek is an electronic file as opposed to a file cabinet does not give them the right to rummage through the entire file. The same rules that govern the discovery of information in hard copy documents apply to electronic files.” Applying this reasoning, the court held that the defendants’ discovery request was overbroad because turning over the plaintiff’s user names and passwords would give them access to “all the information in the private sections of her social media accounts—relevant and irrelevant alike.”

Although the court denied the motion to compel, it did find that relevant information in the private section of a social media account is discoverable, and that this information is not privileged or protected from discovery by a common law right of privacy. Moreover, the court stated that the plaintiff had a continuing duty to preserve all the information in her social media accounts and that the plaintiff’s counsel should advise defendants’ counsel if any information in the private sections of the accounts had been deleted since discovery was served.…

A Look Back: Top 10 E-Discovery Developments and Trends Emerging Out of 2011

We recently prepared a summary of the top developments and trends in electronic discovery that came out of 2011.  Given the evolving nature of this area of the law, understanding the key events from last year can help with this year’s e-discovery challenges.  To see what made our list, click here.

Among the highlights:

  • "Computer-assisted review" gained traction as a potential way to reduce costs and increase accuracy during document review, resulting this year in the first-known judicial opinion recognizing computer-assisted review as an acceptable method to search for relevant electronically stored information (ESI) during discovery – a development we see playing a key role in how new technology will be leveraged to address budget and timeline concerns going forward. 
  • Information governance and the need for strong records management policies saw increased discussion last year – a development we see leading to more businesses considering what steps they can take before litigation arises to reduce the volume of potentially discoverable ESI, particularly as new sources of ESI emerge as discovery targets.
  • Discovery obligations meet data protection obligations on a global scale –  The Sedona Conference® issued a timely and important resource, which we reported on, with an eye toward multinational companies facing a conflict between the requirements of U.S. discovery rules and foreign privacy laws, particularly as the European Commission has proposed a comprehensive reform of the EU’s 1995 data protection rules.
  • National civil rule reform is still a ways off from happening, but many federal

Federal Court Approves Use of “Computer-Assisted Review” to Find and Produce Relevant ESI in Discovery

In the first-known judicial opinion in which a court has recognized that the use of computer-assisted review is an acceptable way to search for relevant electronically stored information (ESI) in appropriate cases, Magistrate Judge Andrew J. Peck of the United States District Court for the Southern District of New York issued an opinion on Friday approving the use of “computer-assisted review” to find and produce relevant ESI in an employment discrimination case filed as a class action.…

The Sedona Conference® Publishes International Principles on Discovery, Disclosure & Data Protection

The Sedona Conference® recently published the International Principles on Discovery, Disclosure & Data Protection (“International Principles”) through its Working Group 6 on International Electronic Information Management, Discovery and Disclosure. The Sedona Conference® launched Working Group 6 in 2005 to bring the most experienced attorneys, judges, privacy and compliance officers, technology-thought leaders, and academics from around the world to discuss the management, discovery, and disclosure of electronically stored information (“ESI”) involved in cross-border disputes. The publication of the International Principles comes in light of a number of U.S. court decisions over the last two years ordering the disclosure of information in U.S. litigation despite the existence of foreign privacy laws that otherwise would have prohibited such disclosure. See, e.g., EnQuip Technologies Group, Inc. v. Tycon Technoglass, S.R.L., 2010-Ohio-28, 2010 WL 53151 (Jan. 8, 2010).…