#how to reduce eDiscovery costs

[ediscoveryai]

Leveraging AI in eDiscovery: Early Case Assessment Software Solutions

In today’s fast-paced legal landscape, the ability to quickly and accurately assess a case can make all the difference. As litigation becomes increasingly complex, traditional methods of eDiscovery can feel like navigating a maze without a map. Enter early case assessment software—an innovative solution that leverages artificial intelligence to revolutionize how legal professionals approach their cases. Imagine having insights at your fingertips almost instantly. With early case assessment tools, lawyers and firms can uncover critical information that shapes strategy and decision-making right from the start. This shift not only enhances efficiency but also positions legal teams to tackle challenges head-on in an ever-evolving environment. Join us as we explore how these intelligent solutions are transforming ai in ediscovery and empowering legal practitioners to unlock valuable insights faster than ever before.

Unlock Insights Faster: The Power of Early Case Assessment

Early case assessment software is a game changer for legal professionals looking to gain an edge. By harnessing advanced algorithms, these tools sift through mountains of data rapidly. This capability allows lawyers to pinpoint relevant information without the tedious manual review. The speed at which insights are generated can shift the dynamics of a case. Legal teams can assess risks, determine strengths and weaknesses, and make informed decisions much earlier in the process. Additionally, these solutions provide visual analytics that transform complex data into understandable formats. Lawyers can quickly grasp key trends and patterns that might otherwise go unnoticed. As cases evolve, ongoing assessment becomes crucial. Real-time updates enable attorneys to adapt strategies seamlessly as new evidence comes to light. With early case assessment software, unlocking valuable insights becomes not just possible but effortless.

Transforming eDiscovery: The Future of Legal Analytics

The landscape of eDiscovery is rapidly evolving. Legal analytics powered by artificial intelligence is at the forefront of this transformation. AI algorithms can analyze vast amounts of data in mere seconds, uncovering patterns and insights that would take traditional methods weeks or even months to reveal. This capability enables legal professionals to make informed decisions quickly. Predictive coding and machine learning are game-changers. They allow teams to prioritize relevant documents, reducing the volume for review significantly. As a result, lawyers can focus on strategy rather than sifting through irrelevant files. Moreover, advanced visualizations help attorneys grasp complex data narratives effortlessly. With these tools, they become equipped not just to react but also to anticipate outcomes based on historical data trends. Embracing legal analytics means staying ahead in an increasingly competitive field where speed and precision matter more than ever.

Reduce Costs and Time with Intelligent Case Assessment Tools

The legal landscape is evolving rapidly, and so are the tools available to practitioners. Intelligent case assessment software plays a pivotal role in this transformation. By harnessing AI capabilities, these solutions expedite the process of evaluating cases early on. They sift through massive datasets with speed and accuracy that traditional methods simply cannot match. This efficiency translates into significant cost savings for law firms and clients alike. Instead of pouring resources into lengthy manual reviews, teams can allocate their time where it truly matters—strategizing and building stronger cases. Moreover, the intuitive interface of many modern tools allows even those who may not be tech-savvy to navigate complex data easily. As a result, stakeholders at all levels can access critical insights without steep learning curves or extensive training. With intelligent case assessment tools at your disposal, you empower your legal team to make informed decisions quickly while reducing overhead costs associated with prolonged assessments. Embracing these advancements isn't just about keeping pace; it's about staying ahead in an increasingly competitive field. By integrating early case assessment software into your eDiscovery workflow, you're not merely adapting—you're transforming how legal professionals approach litigation from day one. The future belongs to those ready to leverage technology for smarter outcomes.

[speed-seo]

Uncover the Underused B2B SEO Strategies Your Competitors Use to Crush Your Lead Gen

Search engine optimization (SEO) is often treated as an afterthought in B2B marketing. But what if I told you that a strategic SEO approach could help you generate, on average, 3X more leads than your top competitor in just 6-12 months? It's true - but you need to move beyond the SEO basics and get strategic with underutilized tactics tailored specifically to B2B buying cycles. In this comprehensive guide, you'll discover insider strategies on intent-based keywords, pillar content, backlink building, technical SEO, and busting myths holding your SEO back. With over 1,000 words of tactical advice, this is the guide your competitors don't want you to read! Laser-Focused Keywords Deliver 3X More B2B Leads Optimizing for informational, intent-driven keywords is a proven way to generate more leads, yet most B2B brands only target product and service terms. Here's how to uncover the questions and pain points your customers have at every stage of their journey. Move Beyond Keyword Checklists with This Research Rather than rely on generic keyword tools, take the time to dig into the search questions your ideal buyers have as they move through the funnel. Tools like Google's Keyword Planner certainly have a place, but also analyze chat logs, voice of customer data, and sales call transcripts to reveal actual language used. Surveys and support tickets are a goldmine for uncovering informational search terms. Align SEO to Each Buyer's Journey Stage With this expanded keyword research, you can now optimize pages and content to target each stage of the B2B buying journey. For example, attorneys in the awareness phase may search for "how to reduce legal discovery costs" while those evaluating solutions look for comparisons like "ediscovery software features". The Results: 3X More Leads in 6 Months One B2B client using this intent-driven approach saw a 206% increase in organic leads in just 6 months. Their competitor targeting the same persona saw only a 68% bump. By aligning SEO tightly to informational search queries, they tripled their competitor's leads. Pillar Content Sets You Apart as an Authority Forget thin blog posts that barely scratch the surface. To really demonstrate expertise around topics your prospects care about, you need pillar content. I'm talking epic guides, comprehensive ebooks and toolkits - the type of resources people happily hand over their email address to get their hands on. In my decade of doing B2B SEO, I've seen first-hand how pillar content can transform a company's lead gen strategy. Become a Trusted Resource Here's the truth - people want to learn from brands they trust. In competitive spaces like legal, finance and healthcare, establishing trust is everything. Pillar content is your secret weapon to position your brand as an authority buyers can rely on. Unlike short blog posts, pillars show you've done the work to create something truly valuable. We're talking Ultimate Guides with stats, actionable takeaways, and everything an ideal prospect needs to know on a topic. Don't hold back! Make it a beast of a download. Turn Pillars into Lead Magnets Now comes the fun part - turning that pillar into a lead generation workhorse. Gate access to the download with a simple contact form. Promote it heavily across channels for months. One client did this with a comprehensive SEO guide for attorneys and got 521 new leads in just 90 days. Invest Time for Maximum Impact I won't lie to you - creating awesome pillar content takes time and effort. But it's one of the highest ROI activities for long term lead gen. For a big impact across multiple personas, aim for 2-3 new pillars per quarter. Repurpose and promote them for months (even years) to maximize conversions. "Non-Traditional" Backlinks - It's All About Relationships Guest posting on other blogs is just one backlink tactic - and not always the best for B2B. The most valuable links come from active participation in your industry's communities. Become a Genuinely Helpful Expert Seriously - stop spamming forums and groups trying to sneak in backlinks. Instead, focus on building relationships by consistently providing value. Share insights, offer advice, be helpful. Organically weave in mentions of your relevant content if it benefits the community. HARO - A Goldmine for Quality Backlinks I can't stress enough how valuable HARO has been for one of my clients. It's a platform where journalists request expert sources for articles. In 6 months, they've been featured in mainstream publications like Forbes, Inc, and Entrepreneur - earning quality backlinks, branding wins, and new traffic. Measure Relationship-Building, Not Just Links Sure, track backlink growth from these sources. But also measure the relationships you're building in communities and with journalists. This compounds over time into insane authority-boosting wins. Technical SEO - The Competitive Edge With how much B2B buyers rely on search, technical SEO can make or break your marketing. How does your site stack up on crucial factors like speed, mobile optimization and indexation? Site Speed - Optimize for the Impatient Here's a scary stat: 53% of mobile site visitors will leave a page that takes over 3 seconds to load. B2B buyers are even more impatient - don't make them wait! Use tools like Google PageSpeed Insights and Pingdom to catch speed issues. Mobile Responsiveness - No More Pinched Fingers Trying to read content on a non-mobile friendly site makes me want to chuck my phone across the room. Seriously, we're past the point where mobile optimization is optional - make it happen. Test your site on multiple devices and fix pesky issues like tiny text or wonky navigation. Indexation - Get Your Pages Found It means nothing to optimize content if Google can't index and surface your pages in results! Sneaky technical problems like crawling errors can completely hide your content from search. Stay on top of indexation with tools like Google Search Console. The key is constantly monitoring and improving technical SEO issues that impact user experience. It pays off big time. Conclusion and Next Steps Throughout this guide, we've explored proven yet underutilized SEO strategies tailored specifically to B2B buying cycles: - Intent-based keywords help you uncover the informational questions your prospects have at each stage, leading to 3X more leads. - Pillar content sets you apart as an authority, turning epic guides into lead generation workhorses that bring in 500+ new contacts. - Relationship-focused link building in communities and via HARO outreach leads to high-quality backlinks from trusted industry sources. - Fixing technical SEO issues like site speed and indexation creates a foundation for SEO success. These are strategic plays your competitors likely haven't tapped into yet. Adopting them now before the masses catch on provides a unique competitive advantage for your B2B organization. Imagine having a steady flow of qualified leads from across the buyer's journey - not just when they're ready to purchase. Envision closing deals faster because prospects already know and trust you. This future is possible when you align your SEO approach tightly to how B2B buyers research solutions. The time is now to transform your SEO. Click here to schedule a custom audit and roadmap to kickstart implementing these strategies. Our team is ready to uncover gaps in your current SEO approach and build a high-impact plan tailored to your business goals. Congratulations on committing to SEO success - let's talk soon! Read the full article

[dankusner]

SPOILATION — Original Digital Format

Production In Original Digital Format 

When handling electronic documents in litigation matters, one crucial decision to make is how to produce the data. 

The ILTA Litigation Practice Support Survey asked, “In what format do you most frequently produce?” 

The results showed that 41% of respondents produced data using TIFF / Text files with metadata load files, 36% produced data in PDF or Native format with or without load files, and 22% produced Native files. 

This article will proffer why Native production with or without load files is the most advantageous way to produce records. 

Please note that in the spirit of reconciliation with indigenous communities in Canada, Native production will be referred to as production in its Original Digital Format (“ODF”) as guided by the Sedona Canada 2022 principles.

The landscape of eDiscovery evolves rapidly as new sources of evidence change the definition and boundaries of what constitutes a “document.” 

Litigation support professionals manage a deluge of data from a variety of sources, including collaboration apps, social media, and mobile data, bringing challenges with embedded links, emoticons, and more. 

Production of this new data, along with standard file types (emails and eDocuments), needs to be managed with efficiency, diligence, and planning. 

Collaborating with counsel to develop a practical Electronically Stored Information (“ESI”) protocol and proactively discussing documentary disclosure will assist in avoiding rework and potential spoliation of evidence and ensure that evidence is produced in a practical, organized, and cost-effective manner.

Original Digital Format production involves exchanging documents in their original format.

 While TIFF production is necessary for documents that require redactions or the management of confidential information, Original Digital Format production offers several advantages that can significantly benefit legal proceedings. 

Below are five reasons why Original Digital Format production should be considered as the preferred approach in litigation matters:

1. Preserving Metadata 

Metadata, including date stamps, author information, and document properties, can be critical in litigation cases. 

Original Digital Format production maintains this vital data, ensuring its authenticity and reliability as evidence. 

TIFF images are stripped of metadata, which then requires the re-creation of that metadata and its separate production. 

Other document properties are simply lost in TIFF format. 

 2. Reduced Risk of Spoliation 

Spoliation, the alteration, destruction, concealed and/or lost evidence, is a constant concern in litigation. 

Original Digital Format files are less susceptible to allegations of spoliation, providing a higher level of document integrity. 

Original Digital Format production preserves the original content and appearance of documents, providing the reviewer with an indication of what the file looked like in its original form. 

This transparency can reduce disputes, as parties can see the unaltered documents, fostering trust in the legal process.

3. Cost Efficiency 

Converting files to different formats can be time-consuming and expensive. 

Original Digital Format production eliminates the need for conversion, resulting in cost savings and a streamlined process. 

TIFF productions are a costly relic of paper-based records. 

TIFF and PDF production increase the expense and reduce the practicality of the production. 

4. Easier Review and Analysis 

The review and analysis of Original Digital Format documents is simpler, faster, and more straightforward for legal professionals, expediting decision-making. 

The more searchable metadata enables legal professionals to find relevant information and isolate critical documents more efficiently. 

This is invaluable for early case assessment and document searches during the litigation process.

5. Compatibility and hosting 

ODF production ensures compatibility with various platforms and software, reducing the likelihood of technical issues when accessing or presenting documents in a litigation setting.

TIFF productions are often much larger in volume and size, significantly increasing the costs for responding parties to ingest and host. 

In summary, while ODF production offers numerous advantages, it is essential to consider the specific requirements and guidelines of your litigation matter.

Even though the document production stage may be months or years, the production format should be discussed and agreed upon during early litigation planning and included in the ESI protocol.

 Consulting with legal professionals to determine the most suitable approach for your unique situation is crucial.

In most instances, ODF production should be the preferred choice, providing greater accuracy, transparency, and efficiency in the legal process.

When The Timing of Your Spoliation Motion Can Be As Important As Its Substance | JD Supra

A motion for an adverse inference was denied in Pratt v. Robbins, et al., 2024 WL 234730, Case No. 5:20-cv-170-GCM (W.D. N.C. Jan. 22, 2024) where Defendants failed to preserve or produce a video that might have contained pivotal evidence going to the heart Plaintiff’s civil rights claim for excessive force.

Background

In support of their motion for summary judgment, Defendants offered an Incident Report that referenced a video which they claimed demonstrated that “only the minimum amount of force was used in order to maintain control . . .” of Plaintiff but that “due to a camera malfunction” the actual use of force at issue against Plaintiff was not captured in the recording. Id.

Neither Plaintiff, who filed his claim pro se, nor his counsel, who appeared before dispositive motions were filed, had propounded any discovery on Defendants. Id.

In opposition to Defendants’ summary judgment motion, Plaintiff argued that Defendants spoliated evidence by failing to produce video footage potentially capturing the use of force that may have been recorded by cameras in the facility or in the handheld video footage taken by one of the Defendants. Id.

As a result, Plaintiff sought an adverse inference sanction against Defendants that the recordings would substantiate his excessive force claim, and refuted Defendants’ version of what had occurred. Id.

Courts Have Broad Discretion to Impose Spoliation Sanctions

Spoliation sanctions “should be designed to:

(1) deter parties from engaging in spoliation;

(2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and

(3) restore the prejudiced party to the same position he or she would have been in absent … [the spoliation].” Id.

(internal quotations and citation omitted)

A party’s obligation to preserve ESI arises from Federal Rule of Civil Procedure 37 (e), which also provides the court the ability to impose sanctions for failing to preserve or for destroying ESI. Id.

Rule 37 (e)(2)

provides that the court only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

Id. Plaintiff Failed to Meet His Burden of Proving The Elements of Rule 37 (e)

A party seeking spoliation sanctions bears the burden of proving all of the elements of Rule 37(e), and under Fourth Circuit precedent is generally required to do so by a “clear and convincing standard.”

Pratt, 2024 WL 234730, *2 (internal citation omitted).

Plaintiff failed to establish that Defendants intended to spoliate the missing video footage.

The particular Defendant who had, on occasion, used a handheld camera to record video in similar situations had only done so one or two times in his career and did not recall having done so on this particular occasion.

In addition, even though Defendants’ Incident Report acknowledged that “…the use of force that occurred on offender Pratt was not captured….” and Defendants’ review of the video that they did have supported their version of events, the missing footage was said to have been caused by a “camera malfunction.”

Further, Defendants did not have access to the video recordings or the ability to delete them; the cameras used to record video in the facility recorded to servers that were kept in a locked room.

Accordingly, Plaintiff was unable to show that any lost ESI was caused by Defendants’ “failure to take reasonable steps to preserve the ESI, or that the Plaintiff was prejudiced by the result of any such loss.” Id.

Conclusion

Even though Plaintiff failed to proffer any evidence that Defendants intended to spoliate ESI – ESI which could have potentially substantiated Plaintiff’s claim of excessive force – that failure was not what the Court focused on in its ruling.

Rather, it was Plaintiff’s decision to suddenly cry foul on the eve of trial, after also failing to propound any discovery on Defendants that did not go over well with the Court:

“he should have properly addressed such a failing during discovery, rather than attempt to style such a failing as ‘spoliation’ shortly before trial.” Id.

| U.S. Copyright OfficeAbout

§ 232.3

Bad-faith conduct.

(a) General.

The Board shall award costs and attorneys' fees as part of a determination where it is established that a participant engaged in bad-faith conduct, unless such an award would be inconsistent with the interests of justice.

(b) Allegations of bad-faith conduct —

(1) On the Board's initiative.

On its own, and prior to a final determination, the Board may order a participant to show cause why certain conduct does not constitute bad-faith conduct.

Within 14 days, the participant accused of bad-faith conduct shall file a response to this order, which shall follow the procedures set forth in § 220.5(a)(2).

(2) On a party's initiative.

A party that in good faith believes that a participant has engaged in bad-faith conduct may file a request for a conference with the Board describing the alleged bad-faith conduct and attaching any relevant exhibits.

Requests for a conference concerning allegations of bad-faith conduct and any responses thereto shall follow the procedures set forth in § 220.5(a)(2) of this subchapter.

(c) Establishing bad-faith conduct.

After the response of an accused participant has been filed under paragraph (b) of this section, or the time to file such a response has passed, the Board shall either make a determination that no bad-faith conduct occurred or schedule a conference concerning the allegations.

(d) Determining the award.

A determination as to any award of attorneys' fees and costs due to bad-faith conduct shall be made as part of the final determination.

In determining whether to award attorneys' fees and costs due to bad-faith conduct, and the amount of any such award, the Board shall consider the requests and responses submitted, any arguments on the issue, and the accused participant's behavior in other Board proceedings.

Such an award shall be limited to an amount of not more than $5,000, unless—

(1) The adversely affected party appeared pro se in the proceeding, in which case the award shall be limited to costs in an amount of not more than $2,500; or

(2) Extraordinary circumstances are present, such as a demonstrated pattern or practice of bad-faith conduct, in which case the Board may award costs and attorneys' fees in excess of the limitations in this section.

V. CLAIMANT RESPONDENT On March 4, 2024, this claim before the Copyright Claims Board (Board) alleging copyright infringement.

The claim attached a supplementary document that shows a screenshot of correspondence between Claimant and the respondent, (“Respondent” or “Redstone”), with Claimant offering to waive liability if Respondent agreed to participate in the proceeding.

The correspondence indicates that Claimant’s true intention is to pursue action against a third party (YouTube).

The strong implication of the correspondence is that Claimant is attempting to set up and win (without Respondent challenging her) a sham proceeding that she can then use in future litigation against YouTube.

On March 21, 2024, the Copyright Claims Board (Board) issued an Order to Show Cause in claim 24-CCB-

The Order to Show Cause ordered Claimant to file a response by April 4, 2024.

Because Claimant did not file a response by the deadline, the Board ordered her to appear at an April 18, 2024 conference to explain the conduct described in the Order to Show Cause (“Conference”).

37 C.F.R. § 232.3(c). Claimant appeared and was given an opportunity to explain her actions and answer questions related to her filing.

Claimants can only file a claim or take a position before the Board if they have a legitimate reason for doing so.

By submitting materials or advocating positions before the Board, a participant certifies that to the best of the participant's knowledge, information, and belief, formed after a reasonable inquiry under the circumstances, that it is not being presented for any improper purpose.

37 C.F.R. §§ 220.1(c); 232.2(a).

Claimant attached to her claim certain online correspondence she had with Respondent.

Claimant’s messages appear next to her name and a picture of her, and Respondent’s messages appear next to his name and, presumably, a picture of him.

In the correspondence submitted (it is unclear if what is submitted is partial or complete),

confirms that she is communicating with the person who twice “uploaded a recording of [her] song ] to YouTube.”

Respondent confirms that it was he and states that he was “sharing [his] love for the tune” and offered to remove it.

responded: Thank you for confirming.

What I would like to do is ask for you to participate in a legal claim at a small claims tribunal called the Copyright Claims Board.

I’ve already sent the DMCA takedown notices to YouTube.

Docket number: 24-CCB-

FINDING OF BAD FAITH

There is nothing wrong with that part of the communication.

However, message continues: If you agree to participate, I can offer you immunity. My real focus is YouTube, who has red flag knowledge of these uploads but allows them anyway.

It has destroyed my livelihood.

I’m sure you’re skeptical of my motivations, but with your confirmation above, I could file a claim without your cooperation, by process service to [redacted], your home.

Do I have that right?

language is clear.

It indicates that she was offering Respondent immunity from any liability to get an agreement from Respondent to participate in a fraudulent proceeding so that she could set up and receive a liability finding—one that she would not enforce—that she would use in future actions against a third-party.

In fact, by the communication’s words, set up a situation where the Board cannot decide this case in her favor now that it is aware of her immunity offer, unless there is evidence that Respondent rejected the offer and wants to participate on the merits;

and, to the contrary, Claimant testified that Respondent had not responded to her offer.

Conference 7:15-7:20.

Regardless, it appears that Claimant was trying to persuade Respondent to agree to a scheme that would use the Board’s time and resources to litigate a claim where no genuine legal dispute exists, and for an improper purpose.

At the Conference, offered what boils down to the following defense:

The Board should believe that her filing was not in bad faith because she was lying to .

testified that practically everything in her communication with Redstone was a lie.

She admitted that she was conducting a ruse, id. 9:29-9:55, and just trying to “seduce[]” and trick Redstone into giving her information that she could use against him and get him to move forward with the proceeding and not opt out.

Id. 7:05-715; 13:05-14:50; 19:35-20:27.

She even stated that she knew that she could not sue YouTube because of its immunity to show that she was willing to say whatever it took to get what she wanted from and was hoping he would not know it was false.

Id. 5:05-5:26; 14:22-14:50 (stating that she did not know if he would know she was lying but “it was like, you know, when you’re fishing, if you try to, if you jerk too fast, it goes off the hook”).

When asked about her offer for immunity, she stated that she never intended to follow through with her offer even if it were accepted by, although she might have attempted to amend her claim into a smaller-claims proceeding.

Id. 18:30-19:05.

While stated that she did not think her offer would be legally binding, id., her testimony was simply not credible.

Therefore, the Board finds that the actions of Claimant constitute bad-faith conduct as defined in the Board’s regulations:

“Bad-faith conduct occurs when a party pursues a claim, counterclaim, or defense for a harassing or other improper purpose, or without a reasonable basis in law or fact.

Such conduct includes any actions taken in support of a claim, counterclaim, or defense and may occur at any point during a proceeding before the Board, including before a proceeding becomes an active proceeding.”

37 C.F.R. § 220.1(c).

Under this standard, the Board has no difficulty in finding that Claimant pursued her claim for an improper purpose.

Even if testimony that she was lying to is truthful, that still amounts to conduct for a harassing or other improper purpose related to a CCB proceeding.

The opt-out provisions, making CCB proceedings voluntary for both sides, exist for an important reason.

Attempting to trick a potential respondent into CCB participation is clearly improper.

is further warned that a second finding of bad-faith conduct in the next twelve months could result in penalties, including a ban on filing new CCB proceedings for a one-year period and dismissal without prejudice of her existing CCB claims. 37 C.F.R. § 232.4. Copyright Claims Board

Right, wrong ways to prosecute Jan. 6 rioters

The people who breached the U.S. Capitol on Jan. 6, 2021, are being held accountable, and attempts to rebrand them as patriotic choirboys are a sign of the bizarre political times.

Yet is it unduly stretching the law to prosecute Jan. 6 rioters using the Sarbanes-Oxley Act of 2002?

The Supreme Court will consider this Tuesday in Fischer v. U.S., and rooting for the government to lose requires no sympathy for the MAGA mob.

Joseph Fischer says in his brief that he arrived late to the Capitol, spent four minutes inside, then "exited," after "the weight of the crowd" pushed him toward a police line, where he was pepper sprayed.

The feds tell an uglier tale.

Fischer was a local cop in Pennsylvania.

"Take democratic congress to the gallows," he wrote in a text message. "Can't vote if they can't breathe..lol."

The government says he "crashed into the police line" after charging it.

Fischer was indicted for several crimes, including assaulting a federal officer.

If true, perhaps he could benefit from quiet time in a prison library reading the 2020 court rulings dismantling the stolen election fantasy.

Sarbanes-Oxley, though?

Congress enacted Sarbox, as it's often called, in the wake of Enron and other corporate scandals.

One section makes it a crime to shred or hide documents "corruptly" with an intent to impair their use in a federal court case or a congressional investigation.

That provision is followed by catchall language punishing anybody who "otherwise obstructs, influences, or impedes" such a proceeding.

Now watch, as jurists with Ivy degrees argue about the meaning of the word "otherwise."

In Fischer's view, the point of this law is to prohibit "evidence spoliation," so the "otherwise" prong merely covers unmentioned examples.

The government's position is that the catchall can catch almost anything, "to ensure complete coverage of all forms of corrupt obstruction."

The feds won 2-1 at the D.C. Circuit Court of Appeals.

Yet two judges were worried how far this reading would permit prosecutors to go.

Judge Justin Walker, who joined the majority, said his vote depended on a tight rule for proving defendants acted "corruptly."

Judge Gregory Katsas filed the vigorous dissent.

The government "dubiously reads otherwise to mean 'in a manner different from,' rather than 'in a manner similar to,'" he argued. The obstruction statute "has been on the books for two decades and charged in thousands of cases — yet until the prosecutions arising from the January 6 riot, it was uniformly treated as an evidence-impairment crime."

A win for the feds, Judge Katsas warned, could "supercharge comparatively minor advocacy, lobbying, and protest offenses into 20-year felonies."

For example:

"A protestor who demonstrates outside a courthouse, hoping to affect jury deliberations, has influenced an official proceeding (or attempted to do so, which carries the same penalty)."

Or how about a Congressman (Rep. Jamaal Bowman) who pulls a fire alarm that impedes a House vote?

Special counsel Jack Smith has charged Donald Trump with obstructing a congressional proceeding, and he says Trump's "fraudulent electoral certifications" in 2020 are covered by Sarbox, regardless of what the Supreme Court does in Fischer.

The other piece of context is that prosecutors going after Jan. 6 rioters have charged obstruction in hundreds of cases.

But if those counts are in jeopardy, don't blame the Supreme Court.

Presumably many of those defendants could be on the hook for disorderly conduct or other crimes, and the feds can throw the book at them.

What prosecutors can't do is rewrite the law to create crimes Congress didn't.

Court Denies Railway Company’s Renewed Motion for Spoliation; Agrees to Bifurcate Trial

Court: United States District Court for the District of Montana, Great Falls Division

In connection to defendant Burlington Northern Santa Fe Railway Company’s ongoing litigation in Libby, Montana (covered extensively by the Asbestos Case Tracker, including most recently HERE), the estate of decedent Mary Diana Moe brought an action against BNSF for wrongful death allegedly resulting from decedent’s exposure to asbestos resulting from BNSF’s activities in Libby.

BNSF previously moved for spoliation sanctions stemming from plaintiff’s failure to preserve decedent’s remains after her death.

The court denied BNSF’s motion after concluding that BNSF failed to meet its burden to show good cause for an autopsy to obtain additional tissue samples.

However, in reaching its decision the court noted that “had good cause been shown to warrant the tissue samples, sanctions could have been appropriate in this case.”

Here, BNSF first brought a renewed motion for spoliation sanctions, arguing that good cause existed to obtain tissue samples from decedent’s lungs for a tissue digestion analysis, which was “the only medically reasonable method” for understanding

(1) if her mesothelioma was caused by asbestos exposure and

(2) if it was caused by asbestos exposure, which type(s) of asbestos fibers caused her diagnosis.

In support of its renewed motion, BNSF offered the declaration of Dr. Mark Wick, an expert pathologist, who stated the cremation of decedent precluded the evaluation needed to establish the cause of her mesothelioma.

Plaintiff, on the other hand, argued that BNSF’s renewed motion was improper under the Federal Rules of Civil Procedure and local rules, and the motion still failed to meet the good cause standard.

Ultimately, the court determined that BNSF’s renewed motion for sanctions was procedurally improper, as BNSF was required to seek leave to file a motion for reconsideration, and that its motion failed to present a valid basis for reconsideration because it did not identify any new facts or applicable law that arose after the entry of the court’s original order.

BNSF also failed to explain why the information now provided in its renewed motion could not have been provided in support of its original motion.

For these reasons, the court denied BNSF’s renewed motion for spoliation sanctions.

However, the court noted that its denial of BNSF’s request to give an adverse jury instruction does not prohibit argument or evidence regarding the basis for decedent’s diagnosis and whether the diagnosis was “definitive.”

Next, BNSF moved to bifurcate the trial into two separate proceedings: the first stage relating to BNSF’s liability for negligence and any amount of compensatory damages, and the second stage relating to liability for punitive damages.

BNSF argued that bifurcation was necessary to avoid unnecessary prejudice against BNSF.

In response, plaintiff conceded that limited bifurcation would be appropriate; however, Plaintiff moved for an alternative approach: the jury could decide liability for both negligence and punitive damages, as well as compensatory damages, in the first stage, and in the second stage the jury would determine what amount of punitive damages, if any, was appropriate.

Plaintiff argued that this approach was consistent with customary practices, was appropriate given the nature of the claims against BNSF, and sufficiently avoids undue prejudice against BNSF.

The court ultimately agreed with plaintiff’s proposed model of bifurcation, finding that the evidence pertaining to BNSF’s liability for negligence would overlap substantially with the evidence pertaining to BNSF’s liability for punitive damages.

The court further noted that any evidence that does arise at trial, if any, that proved irrelevant to plaintiff’s negligence claim could be addressed by the court pursuant to any objections to its introduction.

Accordingly, the court granted BNSF’s motion in part and denied it in part, determining that the trial would be bifurcated in the manner suggested by plaintiff.

The Duty To Preserve and Navigating the Intricacies of Privilege, Waiver of Privilege and the Use of FRE 50…

The duty to preserve evidence and the significant events that determine when the duty to preserve arises is often intertwined with privileged discussions and documents related to the planning and implementation of a litigation hold.

And when there is a dispute about when the duty to preserve was triggered and there are allegations of spoliation, concerns regarding protecting privilege and not waiving privilege become critically important.

Federal Rule of Evidence 502(d) is a powerful tool available to litigants trying to protect against waiver of privilege as a court “may order that the [attorney-client] privilege or [attorney work product] protection is not waived by disclosure connected with the litigation pending before the court ….”

Fed. R. Evid. 502(d); see also Whitaker Chalk Swindle & Sawyer, LLP v. Dart Oil & Gas Corp., No. 4:08-cv-684, 2009 WL 464989, at *4 (N.D. Tex. Feb. 23, 2009) (rejecting argument that “Rule 502 is limited to inadvertent disclosures”).

Lubrizol Corp. v. IBM: A Cautionary Tale

A recent federal court decision provides a cautionary tale to litigants dealing with the complexities of preservation, privilege and the use of a Rule 502(d) order.

In Lubrizol Corp. v. IBM, 2024 WL 941686 (N.D. Ohio Feb. 8, 2024), the court addressed whether a Rule 502(d) order sought by IBM in the face of spoliation allegations can apply to protect the intentional disclosure of certain documents regarding its preservation and litigation hold efforts without waiving the privilege over any related areas, as well as whether IBM waived privilege with respect to its preservation efforts in disputing Lubrizol’s spoliation claim by asserting that IBM did not reasonably anticipate litigation before the filing of the complaint.

The Discovery Dispute Regarding IBM’s Preservation Efforts

Lubrizol filed its complaint in April 2021 alleging that IBM breached a contract between the parties and also accused IBM of fraud and various torts in connection with a project to implement a new enterprise resource planning software.

Lubrizol, 2024 WL 941686 at *1.

Lubrizol amended its complaint months later in December 2021 to add a claim that IBM committed the tort of spoliation when it deleted the ESI of several IBM personnel who worked on the project. Id.

In particular, Lubrizol claimed that between July 2019 and October 2021, IBM deleted the email boxes of several IBM personnel who played key roles on the project.

Lubrizol also alleged that IBM failed to issue a litigation hold until May 2021, after Lubrizol filed its complaint. Id.

IBM did not dispute that the deletions occurred.

IBM’s stance was that the deletions were the result of IBM’s routine document retention protocol and that its duty to preserve was not triggered until the filing of the complaint.

Lubrizol claimed that there were a series of events that put IBM on notice that litigation was anticipated well before the complaint was filed. Id.

Lubrizol filed a letter motion asking the court to compel IBM to respond to certain interrogatories and document requests regarding IBM’s preservation efforts.

Id. at *2.

IBM filed its own letter motion requesting that the court enter a Rule 502(d) order that would permit IBM to produce some privileged preservation-related materials without waiving the attorney-client privilege over other, unproduced materials on the same subject matter. Id. at *2.

The Court Denied IBM’s Request for a Rule 502(d) Order

The court first addressed IBM’s request for a Rule 502(d) order that would allow IBM to produce certain documents and information regarding its preservation efforts and litigation holds without waiving the privilege over any other related materials and without exposing itself to the risk of subject matter waiver. Id.

The court explained that “Rule 502 was enacted to achieve two main goals: (1) resolving disagreement among courts regarding the effect of certain disclosures of privileged information; and

(2) preventing litigation costs from spiraling due to fears that any disclosure of a privileged document would result in subject-matter waiver of all other communications on the same topic.” Id.

The court initially made clear that even though the parties disagreed regarding the propriety and scope of the proposed 502(d) order, the court found that

“it is well-settled that a court may enter a Rule 502(d) order on its own initiative and without the consent of both parties.” Id. at *3.

Lubrizol, however, also argued that the court lacked authority to enter a Rule 502(d) order that would permit IBM to intentionally, rather than inadvertently, disclose privileged information without constituting a subject matter waiver of all other documents and communications on the same topic. Id.

According to the Sedona Conference, “[a] Rule 502(d) order may address not only inadvertent waiver, but also instances in which intentional disclosure will not result in waiver.”

The Sedona Conference Commentary on Protection of Privileged ESI, 17 Sedona Conf. J. 95, 130 (2015).

However, the court cited to a few cases where other courts have reached the opposition conclusion. Lubrizol, 2024 WL 941686 at *3 (citing Smith v. Best Buy Stores, L.P., No. 4:16-cv-00296-BLW, 2017 WL 3484158, at *3 (D. Idaho Aug. 14, 2017)

(“The Court also has serious reservations about the enforceability of a clawback order extending to intentional disclosures.”).

Ultimately, the Court determined that it lacked the authority to grant such a Rule 502(d) order for intentional disclosures because the court was primarily concerned about the possibility that IBM’s proposed Rule 502(d) order “would enable it to disclose documents that support its spoliation position while continuing to withhold, other, less favorable documents.”

Lubrizol, 2024 WL 941686 at *3.

The court also pointed out that other courts shared this same concern and did not enter a Rule 502(d) for intentional disclosures. Id. (citing Thomas v. Marshall Public Schools, No. 21-cv-2581 (PJS/DJF)), — F. Supp. 3d —, 2023 WL 5743611, at *12 (D. Minn. Sept. 6, 2023)

(“While Rule 502(d) allows a party who discloses privileged material to claw them back without having to prove the disclosure was ‘inadvertent,’ it does not sanction the tactical, selective disclosure of some privileged materials for use in litigation while withholding others on the same subject.”).

The Court Found That IBM Waived Privilege With Respect to Its Preservation Efforts

After granting Lubrizol’s motion to compel IBM’s responses to certain interrogatories and document requests regarding IBM’s preservation efforts, the court next turned its attention to Lubrizol’s argument that IBM had waived the attorney-client privilege and work product doctrine under both the “at issue” waiver and crime-fraud doctrine. Lubrizol, 2024 WL 941686 at *5-7.

The court focused on the “at issue” waiver under Ohio law and concluded that IBM waived privilege and that applying the privilege would deny Lubrizol access to information that is vital to its spoliation claim which is unavailable from any other source. Id. at *9-11.

The court reasoned that IBM made relevant the advice that it received from counsel regarding its document preservation efforts and whether litigation was reasonably likely prior to the filing of Lubrizol’s complaint in April 2021 by sending a letter to Lubrizol in October 2021 defending against Lubrizol’s spoliation allegations and claiming it did not reasonably anticipate litigation at the time the documents were deleted. Id. at *9-10.

According to the court, “[i]f counsel was telling IBM before April 2021 that litigation was reasonably likely, that is certainly relevant to Lubrizol’s claim.

Similarly, if IBM’s counsel identified the disputed employees as potentially relevant custodians before their email boxes were deleted, that would impact IBM’s state of mind and the strength of Lubrizol’s spoliation claim.” Id. at *10.

As such, the court found that “IBM waived privilege with respect to:

(1) IBM’s document preservation efforts;

(2) whether IBM reasonably anticipated litigation at the time of the alleged spoliation;

and (3) when IBM identified the disputed custodians as individuals who might possess information relevant to the case” and ordered IBM to produce all responsive documents. Id. at *11.

Finally, the court rejected IBM’s argument that applying the at-issue waiver to these circumstances would create an “incredibly slippery slope” because it would allow the other side to see IBM’s attorneys’ assessment of the merits of the dispute.

To address this concern, the court allowed IBM to redact privileged information that dealt with other topics. Id. at *10.

Key Takeaways:

The Scope of a FRE 502(d) Order:

This case focused on the scope of a Rule 502(d) order as an attempt to be used as a blanket protection for intentional disclosures of privileged information as opposed to just inadvertent disclosures and finding that the circumstances did not warrant the protection of the selective and intentional disclosures proposed by IBM.

A Rule 502(d) Order Is a Very Powerful Tool:

Although the court in the Lubrizol case did not enter the requested Rule 502(d) order proposed by IBM, litigants need to remember that a Rule 502(d) order should be used at the outset of a case as it can protect litigants against privilege waiver without having to prove that they have taken reasonable steps to prevent an inadvertent production of privileged documents.

As Judge Andrew Peck (ret.) has repeatedly told legal practitioners, a Rule 502(d) order can be viewed as a “get-out-of-jail-free card” and “it is akin to malpractice not to get a Rule 502(d) order.”

Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders, 23 Sedona Conf. J. at 17 n.23.

Leveraging Discovery To Uncover When an Opposing Party Anticipated the Potential for Litigation:

This case provides a potential roadmap to challenge an opposing party’s preservation efforts through the use of discovery where spoliation is at issue and the opposing party is attempting to use privilege selectivity as a sword and shield. Risk of Privilege Waiver:

The Lubrizol case highlights the real risk of privilege waiver for companies dealing with the complexities of when litigation is reasonably anticipated to trigger the duty to preserve and the potential legal pitfalls that can arise when documents have been deleted and responding to opposing counsel to defend against spoliations claims.

Early Assessment of the Duty To Preserve Is Critical:

This case serves as an important reminder that companies need to take seriously its duty to preserve obligations and confer with counsel early regarding whether litigation is reasonably anticipated, implement a reasonable preservation strategy, and discuss the potential downsides that can arise when the anticipation of litigation and preservation obligations are not managed carefully.

From: Colin R Hatcher Sent: Friday, March 01, 2019 1:36 PM

Subject: Kusner v. Nath (APPEALED) 173612891-001:

Mr. Kusner good afternoon. I am sending you a copy of our proposed exhibits for trial next week. The Judge expects us to confer on exhibits pre trial to see what can be agreed on. Please let me know if you are agreeable to the exhibits I sent you being admitted into evidence before the trial starts – this makes the trial go smoother. In like manner, please send me a copy of all exhibits you intend to use at trial, and I will do the same. Regards Colin Hatcher

Colin R. Hatcher LAW OFFICE OF TIFFANY A. LIBER Salaried Employees of Progressive Casualty Insurance Company Not a Partnership, Not a Corporation Preston Plaza - 17950 Preston Rd., Suite 410

FTC effort to obtain litigation holds in Amazon case sparks privilege battle

Dive Brief:

The Federal Trade Commission last week said Amazon must hand over its litigation holds and ephemeral messaging instructions so it can see how much of the company’s internal communication about the agency’s antitrust case against it has been lost to spoliation and whether that spoliation was deliberate.

“Plaintiffs need these documents to assess whether Amazon failed to take reasonable steps to preserve documents and to map out what information has been destroyed,” the agency says in an April 25 filing with a federal district court in Washington.

Last year, the agency and 17 state attorneys general sued the company, accusing it of wielding monopoly power to keep prices high while lowering service quality.

Amazon is seeking to get the case dismissed.

Dive Insight:

The spoliation issue is crucial because executives talked among themselves about the company’s potentially anticompetitive business practices using the messaging app Signal, which has an auto-delete setting, the FTC says.

“Executives turned on Signal’s ‘disappearing message’ feature, which irrevocably destroys messages, even after Amazon was on notice that Plaintiffs were investigating its conduct,” says the agency, headed by Lina Khan.

Khan has made the fight with Amazon a key test of the agency’s antitrust enforcement posture.

It took the company 15 months after it learned of the investigation – and 10 months after it was sent its first preservation letters – to issue notices to employees about preserving their communications.

“It is highly likely that relevant information has been destroyed as a result of Amazon’s actions and inactions,” the agency says.

Company founder and then-CEO Jeff Bezos was “a heavy Signal user” and he wasn't sent a notice to preserve his communications for almost a year after the company was sent its first preservation letters, the agency says.

“Mr. Bezos’ documents and communications were clearly within the scope of the investigation,” the FTC says. “As Amazon’s founder and CEO, he was the ultimate decision-maker.”

In its filing, the FTC suggests the company wasn’t forthright in its response to the preservation letters.

“Amazon claims that it did not learn about its employees’ use of Signal until the summer of 2020, even though Amazon’s top executives, including its General Counsel [David] Zapolsky, had been using Signal since 2019,” the agency says.

Almost three years after Amazon received its first preservation letters, employees were told to switch to an internally created app, Wickr, that enables messages to be saved centrally for individuals on legal hold. But the ephemeral conversations didn’t stop.

“Amazon executives continued to use Signal’s disappearing message feature to destroy records of their internal communications,” the agency says.

In the filing, the agency is asking for all of the company’s litigation holds and preservation notices as well as the instructions it sent to employees about use of the ephemeral messaging apps during the investigation.

The company has pushed back against previous attempts by the agency to get its litigation holds and messaging instructions, saying they’re privileged, but the FTC says it only needs to make a preliminary showing that spoliation has occurred to overcome the privilege defense.

“A preliminary showing of spoliation means only that ‘there is reason for concern that evidence has been lost,’” the FTC says. “Such ‘reason for concern’ can be shown where potentially relevant evidence has been destroyed or where a party failed to take adequate steps to preserve information.”

In a statement, Amazon says the FTC is asking for too much. "The FTC has a complete picture of Amazon’s decision-making in this case,” says Tim Doyle, a company spokesperson.

Doyle says the company has provided some 1.7 million documents, including those involving conversations that were held on messaging apps. In all, the company has provided more than “100 terabytes of data.”

If the court finds the spoliation was deliberate, it can impose severe sanctions on the company.

Trevino v. Ortega

ENOCH, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and GONZALEZ, HECHT, SPECTOR, OWEN, ABBOTT and HANKINSON, Justices, join.

The issue in this case is whether this Court should recognize an independent cause of action for intentional or negligent spoliation of evidence by parties to litigation. 1

The court of appeals held that Texas recognizes a cause of action for evidence spoliation.

938 S.W.2d 219, 223.

Because we determine that spoliation does not give rise to independent damages, and because it is better remedied within the lawsuit affected by spoliation, we decline to recognize spoliation as a tort cause of action.

Therefore, we reverse the court of appeals' judgment and render judgment that Ortega take nothing.

In 1988, Genaro Ortega, individually and as next friend of his daughter, Linda Ortega, sued Drs. Michael Aleman and Jorge Trevio and McAllen Maternity Clinic for medical malpractice.

Ortega alleged that the defendants were negligent in providing care and treatment during Linda's birth in 1974. 2

Discovering that Linda's medical records from the birth had been destroyed, Ortega then sued Dr. Trevio in a separate suit for intentionally, recklessly, or negligently destroying Linda Ortega's medical records from the birth.

It is the appeal from this latter action that is before us.

Here, Ortega claims that Trevio had a duty to preserve Linda's medical records and that destroying the records materially interferes with Ortega's ability to prepare his medical malpractice suit.

Ortega explains that Aleman, the attending physician, testified that he has no specific recollection of the delivery and, therefore, the missing medical records are the only way to determine the procedures used to deliver Linda.

Because the medical records are missing, Ortega's expert cannot render an opinion about Aleman's, the Clinic's, or Trevio's negligence.

Responding to Ortega's spoliation suit, Trevio specially excepted and asserted that Ortega failed to state a cause of action.

The trial court sustained Trevio's special exception and gave Ortega an opportunity to amend.

But Ortega declined to amend and the trial court dismissed the case.

Ortega appealed.

The court of appeals reversed the trial court's dismissal order and held that Texas recognizes an independent cause of action for evidence spoliation. 938 S.W.2d at 223.

This Court treads cautiously when deciding whether to recognize a new tort.

See generally Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 404-06 (Tex.1993); Graff v Beard, 858 S.W.2d 918, 920 (Tex.1993); Boyles v. Kerr, 855 S.W.2d 593, 600 (Tex.1993).

While the law must adjust to meet society's changing needs, we must balance that adjustment against boundless claims in an already crowded judicial system.

We are especially averse to creating a tort that would only lead to duplicative litigation, encouraging inefficient relitigation of issues better handled within the context of the core cause of action.

We thus decline to recognize evidence spoliation as an independent tort.

A number of jurisdictions that have considered the issue have been hesitant to recognize an independent tort for evidence spoliation for a variety of different reasons.

See, e.g., Wilson v. Beloit Corp., 921 F.2d 765, 767 (8th Cir.1990) (no spoliation tort under Arkansas law); Edwards v. Louisville Ladder Co., 796 F.Supp. 966, 970 (W.D.La.1992) (existence of adequate remedies); Christian v. Kenneth Chandler Constr. Co., 658 So.2d 408, 412-13 (Ala.1995) (no cause of action under facts of case but noting previous cases allowing jury instruction on the spoliation presumption); La Raia v. Superior Court, 150 Ariz. 118, 722 P.2d 286, 289 (1986) (existence of adequate remedies); Gardner v. Blackston, 185 Ga.App. 754, 365 S.E.2d 545, 546 (1988) (no spoliation tort under Georgia law); Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 209 Ill.Dec. 727, 652 N.E.2d 267, 270 (1995) (traditional negligence remedies sufficiently address the issue and remove the need to create an independent cause of action); Murphy v. Target Prods., 580 N.E.2d 687, 690 (Ind.Ct.App.1991) (no common-law duty for employer to preserve potential evidence for employee's benefit); Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky.1997) (existence of adequate remedies); Miller v. Montgomery County, 64 Md.App. 202, 494 A.2d 761, 767-68 (1985) (existence of adequate remedies); Panich v. Iron Wood Prods. Corp., 179 Mich.App. 136, 445 N.W.2d 795, 797 (1989) (no cause of action under facts of case); Brown v. Hamid, 856 S.W.2d 51, 56-57 (Mo.1993) (existence of adequate remedies and not appropriate on facts of case). 3

Evidence spoliation is not a new concept.

For years courts have struggled with the problem and devised possible solutions.

Probably the earliest and most enduring solution was the spoliation inference or omnia praesumuntur contra spoliatorem: all things are presumed against a wrongdoer.

See, e.g. Rex v. Arundel, 1 Hob. 109, 80 Eng. Rep. 258 (K.B.1617) (applying the spoliation inference); The Pizarro, 15 U.S. (2 Wheat.) 227, 4 L.Ed. 226 (1817) (declining to apply the spoliation inference); Brown, 856 S.W.2d at 56 (noting that Missouri has recognized a spoliation inference for over a century).

In other words, within the context of the original lawsuit, the factfinder deduces guilt from the destruction of presumably incriminating evidence.

This traditional response to the problem of evidence spoliation properly frames the alleged wrong as an evidentiary concept, not a separate cause of action.

Spoliation causes no injury independent from the cause of action in which it arises.

If, in the ordinary course of affairs, an individual destroys his or her own papers or objects, there is no independent injury to third parties.

The destruction only becomes relevant when someone believes that those destroyed items are instrumental to his or her success in a lawsuit.

Even those courts that have recognized an evidence spoliation tort note that damages are speculative.

See, e.g., Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829, 835 (1984); Petrik v. Monarch Printing Corp., 150 Ill.App.3d 248, 103 Ill.Dec. 774, 501 N.E.2d 1312, 1320 (1986).

The reason that the damages inquiry is difficult is because evidence spoliation tips the balance in a lawsuit;

it does not create damages amenable to monetary compensation.

Our refusal to recognize spoliation as an independent tort is buttressed by an analogous line of cases refusing to recognize a separate cause of action for perjury or embracery. 4

Like evidence spoliation, civil perjury and civil embracery involve improper conduct by a party or a witness within the context of an underlying lawsuit.

A number of courts considering the issue have refused to allow the wronged party to bring a separate cause of action for either perjury or embracery.

See, e.g., Cooper v. Parker-Hughey, 894 P.2d 1096, 1100 n. 3 (Okla.1995) (listing a number of jurisdictions that refuse to recognize a separate civil cause of action for perjury); OMI Holdings, Inc. v. Howell, 260 Kan. 305, 918 P.2d 1274, 1296 (1996) (embracery); Trudell v. Heilman, 158 Cal.App.3d 251, 204 Cal.Rptr. 551, 553 (1984) (embracery disallowed unless plaintiff has no other means of redress); Hoston v. Silbert, 514 F.Supp. 1239, 1241 (D.D.C.1981) (embracery), rev'd on other grounds, 681 F.2d 876 (D.C.Cir.1982).

These decisions rely on public policy concerns such as ensuring the finality of judgments, avoiding duplicative litigation, and recognizing the difficulty in calculating damages.

Kessler v. Townsley, 132 Fla. 744, 182 So. 232, 232 (1938) (res judicata); OMI, 918 P.2d at 1290, 1293 (duplicative litigation and speculative damages).

Similarly, recognizing a cause of action for evidence spoliation would create an impermissible layering of liability and would allow a plaintiff to collaterally attack an unfavorable judgment with a different factfinder at a later time, in direct opposition to the sound policy of ensuring the finality of judgments.

We share Ortega's concern that, when spoliation occurs, there must be adequate measures to ensure that it does not improperly impair a litigant's rights, but we disagree that the creation of an independent tort is warranted.

It is simpler, more practical, and more logical to rectify any improper conduct within the context of the lawsuit in which it is relevant.

Indeed, evolving remedies, sanctions and procedures for evidence spoliation are available under Texas jurisprudence.

Trial judges have broad discretion to take measures ranging from a jury instruction on the spoliation presumption to, in the most egregious case, death penalty sanctions.

See, e.g., Watson v. Brazos Elec. Power Coop., Inc., 918 S.W.2d 639, 643 (Tex.App.--Waco 1996, writ denied) (holding that trial court erred when it failed to give a spoliation instruction); Ramirez v. Otis Elevator Co., 837 S.W.2d 405, 412 (Tex.App.--Dallas 1992, writ denied) (noting that a trial court possesses wide discretion in awarding discovery sanctions); see also TEX.R. CIV. P. 215(b).

As with any discovery abuse or evidentiary issue, there is no one remedy that is appropriate for every incidence of spoliation; the trial court must respond appropriately based upon the particular facts of each individual case.

Ortega also argues that the failure to maintain Linda's medical records violated a statutory duty to…

Trevino v. Ortega Case Brief for Law School · LSData

This legal case discusses the absence of a separate cause of action for evidence spoliation in Texas, but existing remedies available within litigation.

However, Texas courts have been hesitant to apply these remedies, which can be problematic for litigants faced with evidence destruction.

The duty to preserve evidence arises when a party is aware of potential litigation, which is reasonably foreseeable.

Sanctions are appropriate when a party knew or should have known that destroyed evidence was relevant to pending, imminent, or reasonably foreseeable litigation.

Remedies for evidence destruction are granted only when the destruction has prejudiced the non-destroying party's ability to present its case or defense.

Trial courts have broad power to sanction parties for evidence destruction, including the authority to sanction parties for abusing the discovery process.

Once a court determines that evidence has been improperly destroyed and that the non-destroying party was prejudiced by the destruction, the court must decide on an appropriate sanction.

The court has broad discretion in choosing the sanction, and there are various options available, including dismissal or default judgment against the destroyer and exclusion of evidence or testimony.

‘Failed to preserve critical evidence’:

Trump motion could shake up Mar-a-Lago case after Jack Smith admits his office misled court about location of documents in seized boxes

Left: Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin, File); Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York. (AP Photo/Julia Nikhinson, Pool)

Former President Donald Trump alleges special counsel Jack Smith and other prosecutors admittedly “failed to maintain the integrity of the contents of certain boxes obtained at Mar-a-Lago” in a Monday filing asking the court to cancel a set of looming deadlines.

Late last week, Trump’s personal valet, Waltine “Walt” Nauta, requested extra time to file two sets of documents related to classified materials and expert testimony.

The basis for those requests was the government’s alleged failure to provide an “accurate” index that cross-referenced the contents of the boxes.

In response, the prosecution characterized those claims as bogus and essentially made up.

But there were some key admissions.

“[T]here are some boxes where the order of items within that box is not the same as in the associated scans,” Smith admitted in the body of the motion before adding in a footnote: “The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the court.”

During a hearing on April 12, a member of the special counsel’s team responded to a question from Cannon as to whether the boxes were “in their original, intact form as seized” by stating “they are, with one exception; and that is that the classified documents have been removed and placeholders have been put in the documents.”

Defense attorneys seized on that language and, in a motion seeking leave to file a sur-reply — a reply to a motion that can only be filed with court approval since all briefs on an issue have been filed — framed the disclosure as “discovery violations, misrepresentations to the Court and potential spoliation resulting from the mishandling of boxes.”

Included with the motion, was a copy of the proposed defense response to the government’s latest admission in the case — which alleges Smith “attempted to bury” the concession “in a footnote.”

“President Trump and counsel are deeply troubled to be learning of these facts approximately 11 months after the charges were filed in this case,” the would-be filing reads.

“The May 3, 2024, disclosures by the Special Counsel’s Office raise questions about the investigation and the handling of evidence that must be addressed before the matter proceeds.”

The government’s admitted inability to maintain the order of the documents in the boxes, coupled with a prior in-court claim to the contrary, has provided Trump with ample legal angles to attack.

From the filing, at length:

Regarding the so-called “cover sheets” that the prosecution team used as replacements for allegedly classified documents in the boxes, the Special Counsel’s Office wrote that the FBI “generally” had “replaced the handwritten sheets with classified cover sheets annotated with the index code.”

But the Office did not explain why they could not offer a precise, categorical representation about the process that was used instead of a “general” one.

The Office also admitted that in “many but not all instances, the FBI was able to determine which document with classification markings corresponded to a particular placeholder sheet.”

This further suggests that even if the scans are the “best evidence available,” they are not a reliable record of the boxes’ contents.

The “not all” caveat is, however, consistent with the recent and inexplicable disclosure that the “filter team” was “not focused” on the order of documents in the boxes that are at the heart of this case.

The defense says those issues implicate Trump’s motions to suppress evidence and to dismiss based on prosecutorial misconduct.

Additionally, the admission means the former president is likely to file a motion to further compel similar disclosures — unless Smith makes such disclosures voluntarily.

On top of that, Trump’s defense previewed, there will likely be “additional motions for sanctions based on spoliation, including a motion to dismiss the charges if the Office cannot prove in a reliable way how it seized and handled the key evidence in the case, which will be a central issue at any trial.”

For several months now, the government, the defendants and the court have been arguing over the extent to which each side will need access to, can access, and ultimately view discovery information, which is subject to the Classified Information Procedures Act or CIPA.

The heart of the matter concerns what classified information defense counsel can actually use and disclose during trial — all of which is subject to a mandatory notice requirement under CIPA Section 5.

In early April, U.S. District Judge Aileen Cannon set a May 9 deadline for those disclosures — also instructing the defendants to disclose potential expert witnesses they intend to call during the trial and the subject matter of their potential expertise.

Nauta asked for an indefinite stay of those deadlines over the alleged discovery violations but Trump’s attorneys suggest the fallout could be even greater.

“For example, if the case proceeds to trial or evidentiary hearings, President Trump will now seek to use classified information to cross-examine witnesses regarding appropriate procedures for handling classified information in connection with briefings and evidence in connection with investigations,” the defense filing reads. “Defense counsel will also need to re-review the classified discovery, among other things, to consider new defenses and potential expert notice based on these disclosures, such as defenses and experts that focus on the chain-of-custody and search-execution deficiencies.”

To hear lead Trump attorney Todd Blanche tell it, the “failure to maintain the integrity of the evidence in the boxes” implicates every single box seized from Mar-a-Lago and directly contradicts the government’s “full-throated but now concededly false assertions of compliance with their discovery obligations.”

Perhaps anticipating some criticism, the defense says they could not have known about the issue until the prosecution’s admission.

“During the review of discovery and preparation of pretrial motions, President Trump’s counsel had relied on the scans and believed that the location of allegedly classified documents within the boxes was exculpatory,” the filing goes on. “Indeed, it was our understanding that most, and potentially all, of the charged documents were buried within the boxes and located next to other items that provided favorable context regarding, inter alia, when the document was placed in a box. It never occurred to us, until last Friday, that the prosecution team could not be trusted to perform the basic task of maintaining the integrity of such evidence despite the expansive resources at their disposal. That is why President Trump’s defense team has not inspected the boxes up to this point and instead focused on other aspects of our defense in motion practice and discovery review.”

And, as for the upcoming deadlines on CIPA evidence and expert testimony, Trump says those should be held in abeyance.

“Defense counsel cannot reasonably be expected to specify classified information that they intend to offer at trial when the Office recently disclosed that one of the most basic premises of the criminal justice process — that the prosecution team can be trusted to maintain existing evidence — no longer applies,” the motion goes on.

An attached letter used three lines from prosecutors who authored the special counsel’s Friday admission to state the defense’s case plainly.

“We are troubled by the concession in your May 3 submission that the prosecution team failed to preserve critical evidence relating to the location of documents within boxes obtained from Mar-a-Lago,” the letter reads. “The documents’ location constituted exculpatory information relating to, inter alia, the complete absence of culpable criminal intent by President Trump … Your failure to disclose the spoliation of this evidence until this month is an extraordinary breach of your constitutional and ethical obligations.”

FTC effort to obtain litigation holds in Amazon case sparks privilege battle

Dive Brief:

The Federal Trade Commission last week said Amazon must hand over its litigation holds and ephemeral messaging instructions so it can see how much of the company’s internal communication about the agency’s antitrust case against it has been lost to spoliation and whether that spoliation was deliberate.

“Plaintiffs need these documents to assess whether Amazon failed to take reasonable steps to preserve documents and to map out what information has been destroyed,” the agency says in an April 25 filing with a federal district court in Washington. Last year, the agency and 17 state attorneys general sued the company, accusing it of wielding monopoly power to keep prices high while lowering service quality. Amazon is seeking to get the case dismissed.

Dive Insight:

The spoliation issue is crucial because executives talked among themselves about the company’s potentially anticompetitive business practices using the messaging app Signal, which has an auto-delete setting, the FTC says.

“Executives turned on Signal’s ‘disappearing message’ feature, which irrevocably destroys messages, even after Amazon was on notice that Plaintiffs were investigating its conduct,” says the agency, headed by Lina Khan. Khan has made the fight with Amazon a key test of the agency’s antitrust enforcement posture.

It took the company 15 months after it learned of the investigation – and 10 months after it was sent its first preservation letters – to issue notices to employees about preserving their communications.

“It is highly likely that relevant information has been destroyed as a result of Amazon’s actions and inactions,” the agency says.

Company founder and then-CEO Jeff Bezos was “a heavy Signal user” and he wasn’t sent a notice to preserve his communications for almost a year after the company was sent its first preservation letters, the agency says.

“Mr. Bezos’ documents and communications were clearly within the scope of the investigation,” the FTC says. “As Amazon’s founder and CEO, he was the ultimate decision-maker.”

In its filing, the FTC suggests the company wasn’t forthright in its response to the preservation letters.

“Amazon claims that it did not learn about its employees’ use of Signal until the summer of 2020, even though Amazon’s top executives, including its General Counsel [David] Zapolsky, had been using Signal since 2019,” the agency says.

Almost three years after Amazon received its first preservation letters, employees were told to switch to an internally created app, Wickr, that enables messages to be saved centrally for individuals on legal hold.

But the ephemeral conversations didn’t stop.

“Amazon executives continued to use Signal’s disappearing message feature to destroy records of their internal communications,” the agency says.

In the filing, the agency is asking for all of the company’s litigation holds and preservation notices as well as the instructions it sent to employees about use of the ephemeral messaging apps during the investigation.

The company has pushed back against previous attempts by the agency to get its litigation holds and messaging instructions, saying they’re privileged, but the FTC says it only needs to make a preliminary showing that spoliation has occurred to overcome the privilege defense.

“A preliminary showing of spoliation means only that ‘there is reason for concern that evidence has been lost,’” the FTC says. “Such ‘reason for concern’ can be shown where potentially relevant evidence has been destroyed or where a party failed to take adequate steps to preserve information.”

In a statement, Amazon says the FTC is asking for too much.

“The FTC has a complete picture of Amazon’s decision-making in this case,” says Tim Doyle, a company spokesperson.

Doyle says the company has provided some 1.7 million documents, including those involving conversations that were held on messaging apps. In all, the company has provided more than “100 terabytes of data.”

If the court finds the spoliation was deliberate, it can impose severe sanctions on the company.

COLIN HATCER questions amount and method of economic damages

Loss of source code section spawns successful spoliation motion

Given the specter of litigation, a company should have preserved the entire source code behind its automotive diagnostic tool, a Superior Court judge has found, ruling that its failure to do so warranted a spoliation sanction.

The case Espaillat v. Lynnway Auto Auction, Inc., et al. was initially brought by the personal representative of the estate of one of five people killed when a Jeep Cherokee accelerated unexpectedly at an auto auction facility in Billerica.

The original defendants then brought a third-party action against the manufacturer of a “scan tool,” the insertion of which into the Jeep’s onboard diagnostics electric port under the dashboard may have caused the Jeep’s unintended acceleration, according to those defendants.

During discovery in that third-party action, the manufacturer produced some but not all the source code for the scan tool.

In weighing the third-party plaintiffs’ spoliation motion, Judge C. William Barrett first had to determine whether the missing source code was relevant to the proceedings.

The manufacturer pointed to two formal investigations, both of which concluded that operator error caused the accident.

But neither investigation evaluated whether the scan tool could have caused or contributed to the accident, Barrett noted.

In fact, the manufacturer’s own expert had conceded that when the company tested its product for latent defects, it had the entire source code.

That testimony “emphasizes [the third-party plaintiffs’] need for the same evidence,” Barrett wrote.

Next, Barrett considered the timing of the alleged spoliation because sanctions can only be imposed when the spoliating party knew or reasonably should have known that the evidence might be relevant to a possible action.

While there was no concrete evidence that the manufacturer was in possession of the source code when it first became aware of potential litigation, it was reasonable to infer both that it had the source code and that it subsequently negligently lost or destroyed that evidence, the judge ruled.

The 11-page decision is Lawyers Weekly No. 12-020-24.

‘Cast the net broadly’

Louis J. Muggeo

By filing the spoliation motion, Louis J. Muggeo of Salem said he and his co-counsel were pursuing an answer to a simple question: “How could this possibly have happened?”

While the State Police and National Highway Traffic Safety Administration had concluded the cause of the accident was “driver error,” those were “default conclusions in both instances,” said Muggeo’s co-counsel, David A. White of North Andover.

“They weren’t able to determine whether or not the scan tool was a causative factor in the sudden acceleration of the vehicle,” White said.

David A. White

The biggest hurdle in pursuing the spoliation sanction was “making the judge understand that this was really a simple issue, although the underlying technology was extremely complex,” Muggeo added.

He said they overcame that hurdle by playing the video of the accident repeatedly at the motion hearing, enabling the judge to appreciate the temporal connection between when the scan tool was placed in the vehicle and when it suddenly accelerated.

“You look at it and you say, ‘Something had to happen here because a vehicle doesn’t just take off like a rocket,’” Muggeo said.

Beyond the complexity of the technology, another of their concerns was that, based on the discovery, they could not affirmatively establish when or how the source code was discarded, Muggeo said.

“Most of the case law said that’s part of our burden,” he acknowledged.

But Muggeo and White shifted that burden to the manufacturer by showing that the source code was in the manufacturer’s exclusive possession and control and that the manufacturer had an unwritten custom and practice of retaining the source code for a product for approximately two years after the product was last sold.

While not disagreeing with the result, Boston attorney Joseph J. Laferrera said it made him a “little squeamish” to impose sanctions on the manufacturer for failing to retain evidence that it may not have possessed when it first became aware of a possible suit.

“Yes, past pattern or practice may suggest that the code was in [the manufacturer’s] possession …, but that ‘informal custom’ is doing a lot of work here,” Laferrera said. “There are a zillion innocent explanations for its being written over or discarded.”

Laferrera said he was also surprised the judge did not require the plaintiffs to offer something more than conjecture that the device might have triggered the unplanned acceleration.

“That might not have been enough for some judges in the commonwealth,” he said.

Attorneys agreed that Barrett’s decision reminds corporate counsel of the value of issuing all-encompassing “litigation holds” once the prospect of a legal action arises.

“I think that corporate counsel would be very prudent to advise their clients to retain more rather than less,” White said.Michael D. Molloy

Spoliation is always thought about in terms of a guilty defendant trying to hide something.

But this could be a case of the opposite, where an otherwise ‘innocent’ defendant could be facing potential liability by not preserving exculpatory evidence.

Laferrera said he instructs his clients to “cast the net broadly.”

“Generally speaking, the sanctions are worse for the client than if they had kept the materials at issue,” he said.

It seems entirely possible that the manufacturer’s product had nothing to do with the incident at all, noted Lowell attorney Michael D. Molloy.

But without the code, there is no way to prove that.

“Spoliation is always thought about in terms of a guilty defendant trying to hide something by either deleting or not preserving evidence,” he said. “But this could be a case of the opposite, where an otherwise ‘innocent’ defendant could be facing potential liability by not preserving exculpatory evidence — a tough pill to swallow.”

On the issue of notice, Newton attorney Matthew J. Fogelman said the standard is often misunderstood as requiring that a company know of an actual pending case.

But the Supreme Judicial Court has said that the standard is that a litigant or its expert either knows or reasonably should know that the evidence might be relevant to a possible action, he explained.

The SJC also stated that the threat of a lawsuit must be sufficiently apparent such that a reasonable person in the spoliator’s position would realize the possible — rather than the certain — importance of the evidence, Fogelman added.

On that front, too, Laferrera has qualms.

One might question whether it would have been evident to a reasonable person that the type of analysis the plaintiffs’ expert characterized as crucial would have been necessary to the investigation, Laferrera said.

The manufacturer’s attorneys, Jay V. Lee and Andrew D. McNaught, of Lowell, had not responded to requests for comment as of Lawyers Weekly’s deadline.

A tragic day in Billerica

Roger Hartwell, an employee of the Billerica automobile auction facility Lynnway Auto, was in the driver’s seat of a 2006 Jeep Grand Cherokee being sold at auction when auto dealer John Sirek approached the Jeep and inserted an Innova 3160d model scan tool into the Jeep’s on-board diagnostics electric port under the dashboard.

Seven seconds after the scan tool was inserted, the Jeep, which had been stopped for more than a minute, accelerated out of Hartwell’s control and crashed into the building, killing five people and injuring seven others.

The Middlesex County District Attorney’s Office, which would later file manslaughter charges against Lynnway Auto and the company’s president, interviewed Sirek and seized the scan tool.

Espaillat v. Lynnway Auto Auction, Inc., et al.

THE ISSUE:

Were spoliation sanctions warranted against a company that was on notice of the possibility of litigation regarding its automobile maintenance diagnostic device when it produced some but not all the source code for that device?

DECISION: Yes (Middlesex Superior Court)

LAWYERS: Louis J. Muggeo of Louis J. Muggeo & Associates, Salem; David A. White of Davis & White, North Andover (third-party plaintiffs)

Jay V. Lee and Andrew D. McNaught, of Gallagher & Cavanaugh, Lowell (third-party defense)

The day after the accident, a State Police lieutenant informed an Innova customer service representative that the scan tool had been plugged into the Jeep’s electric port at the time of the accident.

The lieutenant asked the representative if it was possible the tool could tamper with the Jeep’s acceleration and was told that the tool did not have the capability to put a car into drive or accelerate the engine.

Nonetheless, the lieutenant purchased a scan tool the following day, and within days, Innova had plans to embark on its own investigation, according to company records.

After Lynnway Auto brought its third-party action, Innova produced in discovery some but not all the source code for the 3160d scan tool. Notably missing was the communication source code directly relating to Chrysler vehicles, such as the Jeep.

Lynnway Auto’s electrical engineer expert testified that the source code was essential for a proper and thorough evaluation of the way the scan tool interfaced with the Jeep’s computer systems and electrical signals.

Specifically, the expert maintained that the missing source code was preventing him from properly conducting a software verification activity known as a “static code analysis.”

Innova had produced the binary code for the scan tool, but since it was not a human-readable format, it could not be used to perform the static code analysis, the expert claimed.

In granting the motion for sanctions, Barrett ruled that Lynnway Auto could present evidence of the alleged spoliation at trial and would be entitled to an instruction that the jury could — but was not required — to infer from the deletion of the communication source code that its contents were unfavorable to Innova.

Reasonable inferences

Barrett concluded that Innova was on notice of possible litigation no later than May 4, 2017, when the police lieutenant had the conversation with the company’s customer service representative.

The manufacturer contended that the conversation, at most, placed it on notice of its duty to preserve the device but not the source code.

But Barrett disagreed, citing the testimony of the plaintiffs’ expert regarding the necessity of having the entire source code to conduct the “static code analysis” properly.

The manufacturer also argued that it was not at fault for the spoliation because there was no evidence that it intentionally discarded the missing portion of source code, and the precise date when the source code had been discarded was unknown.

But Barrett deemed the plaintiffs to have sufficiently established that the evidence had been negligently lost or destroyed by citing the company’s “informal custom and practice” of retaining the source code for its scan tool models for approximately two years after a particular model was last sold, coupled with an invoice showing that six of the scan tools had been sold to Wal-Mart about a year before the accident.

The plaintiffs’ expert also averred that it is standard practice in the industry for the purpose of troubleshooting to retain all portions of a source code, rather than selectively discard portions.

Here, the manufacturer had retained some but not all the source code for its scan tool and not explained why or how that happened, Barrett noted.

masslawyersweekly.com

Loss of source code section spawns successful spoliation motion

Given the specter of litigation, a company should have preserved the entire source code behind its automotive diagnostic tool, a Superior Court judge has found, ruling that its failure to do so warranted a spoliation sanction.

The case Espaillat v. Lynnway Auto Auction, Inc., et al. was initially brought by the personal representative of the estate of one of five people killed when a Jeep Cherokee accelerated unexpectedly at an auto auction facility in Billerica.

The original defendants then brought a third-party action against the manufacturer of a “scan tool,” the insertion of which into the Jeep’s onboard diagnostics electric port under the dashboard may have caused the Jeep’s unintended acceleration, according to those defendants.

During discovery in that third-party action, the manufacturer produced some but not all the source code for the scan tool.

In weighing the third-party plaintiffs’ spoliation motion, Judge C. William Barrett first had to determine whether the missing source code was relevant to the proceedings.

The manufacturer pointed to two formal investigations, both of which concluded that operator error caused the accident. But neither investigation evaluated whether the scan tool could have caused or contributed to the accident, Barrett noted.

In fact, the manufacturer’s own expert had conceded that when the company tested its product for latent defects, it had the entire source code. That testimony “emphasizes [the third-party plaintiffs’] need for the same evidence,” Barrett wrote.

Next, Barrett considered the timing of the alleged spoliation because sanctions can only be imposed when the spoliating party knew or reasonably should have known that the evidence might be relevant to a possible action.

While there was no concrete evidence that the manufacturer was in possession of the source code when it first became aware of potential litigation, it was reasonable to infer both that it had the source code and that it subsequently negligently lost or destroyed that evidence, the judge ruled.

The 11-page decision is Lawyers Weekly No. 12-020-24. ‘Cast the net broadly’

Louis J. MuggeoBy filing the spoliation motion, Louis J. Muggeo of Salem said he and his co-counsel were pursuing an answer to a simple question: “How could this possibly have happened?”

While the State Police and National Highway Traffic Safety Administration had concluded the cause of the accident was “driver error,” those were “default conclusions in both instances,” said Muggeo’s co-counsel, David A. White of North Andover.

“They weren’t able to determine whether or not the scan tool was a causative factor in the sudden acceleration of the vehicle,” White said.

David A. WhiteThe biggest hurdle in pursuing the spoliation sanction was “making the judge understand that this was really a simple issue, although the underlying technology was extremely complex,” Muggeo added.

He said they overcame that hurdle by playing the video of the accident repeatedly at the motion hearing, enabling the judge to appreciate the temporal connection between when the scan tool was placed in the vehicle and when it suddenly accelerated.

“You look at it and you say, ‘Something had to happen here because a vehicle doesn’t just take off like a rocket,’” Muggeo said.

Beyond the complexity of the technology, another of their concerns was that, based on the discovery, they could not affirmatively establish when or how the source code was discarded, Muggeo said.

“Most of the case law said that’s part of our burden,” he acknowledged.

But Muggeo and White shifted that burden to the manufacturer by showing that the source code was in the manufacturer’s exclusive possession and control and that the manufacturer had an unwritten custom and practice of retaining the source code for a product for approximately two years after the product was last sold.

While not disagreeing with the result, Boston attorney Joseph J. Laferrera said it made him a “little squeamish” to impose sanctions on the manufacturer for failing to retain evidence that it may not have possessed when it first became aware of a possible suit.

“Yes, past pattern or practice may suggest that the code was in [the manufacturer’s] possession …, but that ‘informal custom’ is doing a lot of work here,” Laferrera said. “There are a zillion innocent explanations for its being written over or discarded.”

Laferrera said he was also surprised the judge did not require the plaintiffs to offer something more than conjecture that the device might have triggered the unplanned acceleration.

“That might not have been enough for some judges in the commonwealth,” he said.

Attorneys agreed that Barrett’s decision reminds corporate counsel of the value of issuing all-encompassing “litigation holds” once the prospect of a legal action arises.

“I think that corporate counsel would be very prudent to advise their clients to retain more rather than less,” White said.Michael D. MolloySpoliation is always thought about in terms of a guilty defendant trying to hide something. But this could be a case of the opposite, where an otherwise ‘innocent’ defendant could be facing potential liability by not preserving exculpatory evidence.

Laferrera said he instructs his clients to “cast the net broadly.”

“Generally speaking, the sanctions are worse for the client than if they had kept the materials at issue,” he said.

It seems entirely possible that the manufacturer’s product had nothing to do with the incident at all, noted Lowell attorney Michael D. Molloy. But without the code, there is no way to prove that.

“Spoliation is always thought about in terms of a guilty defendant trying to hide something by either deleting or not preserving evidence,” he said. “But this could be a case of the opposite, where an otherwise ‘innocent’ defendant could be facing potential liability by not preserving exculpatory evidence — a tough pill to swallow.”

On the issue of notice, Newton attorney Matthew J. Fogelman said the standard is often misunderstood as requiring that a company know of an actual pending case. But the Supreme Judicial Court has said that the standard is that a litigant or its expert either knows or reasonably should know that the evidence might be relevant to a possible action, he explained.

The SJC also stated that the threat of a lawsuit must be sufficiently apparent such that a reasonable person in the spoliator’s position would realize the possible — rather than the certain — importance of the evidence, Fogelman added.

On that front, too, Laferrera has qualms. One might question whether it would have been evident to a reasonable person that the type of analysis the plaintiffs’ expert characterized as crucial would have been necessary to the investigation, Laferrera said.

The manufacturer’s attorneys, Jay V. Lee and Andrew D. McNaught, of Lowell, had not responded to requests for comment as of Lawyers Weekly’s deadline. A tragic day in Billerica

Roger Hartwell, an employee of the Billerica automobile auction facility Lynnway Auto, was in the driver’s seat of a 2006 Jeep Grand Cherokee being sold at auction when auto dealer John Sirek approached the Jeep and inserted an Innova 3160d model scan tool into the Jeep’s on-board diagnostics electric port under the dashboard.

Seven seconds after the scan tool was inserted, the Jeep, which had been stopped for more than a minute, accelerated out of Hartwell’s control and crashed into the building, killing five people and injuring seven others. The Middlesex County District Attorney’s Office, which would later file manslaughter charges against Lynnway Auto and the company’s president, interviewed Sirek and seized the scan tool.

Espaillat v. Lynnway Auto Auction, Inc., et al.

THE ISSUE: Were spoliation sanctions warranted against a company that was on notice of the possibility of litigation regarding its automobile maintenance diagnostic device when it produced some but not all the source code for that device?

DECISION: Yes (Middlesex Superior Court)

LAWYERS: Louis J. Muggeo of Louis J. Muggeo & Associates, Salem; David A. White of Davis & White, North Andover (third-party plaintiffs)

Jay V. Lee and Andrew D. McNaught, of Gallagher & Cavanaugh, Lowell (third-party defense)

The day after the accident, a State Police lieutenant informed an Innova customer service representative that the scan tool had been plugged into the Jeep’s electric port at the time of the accident. The lieutenant asked the representative if it was possible the tool could tamper with the Jeep’s acceleration and was told that the tool did not have the capability to put a car into drive or accelerate the engine.

Nonetheless, the lieutenant purchased a scan tool the following day, and within days, Innova had plans to embark on its own investigation, according to company records.

After Lynnway Auto brought its third-party action, Innova produced in discovery some but not all the source code for the 3160d scan tool. Notably missing was the communication source code directly relating to Chrysler vehicles, such as the Jeep.

Lynnway Auto’s electrical engineer expert testified that the source code was essential for a proper and thorough evaluation of the way the scan tool interfaced with the Jeep’s computer systems and electrical signals.

Specifically, the expert maintained that the missing source code was preventing him from properly conducting a software verification activity known as a “static code analysis.”

Innova had produced the binary code for the scan tool, but since it was not a human-readable format, it could not be used to perform the static code analysis, the expert claimed.

In granting the motion for sanctions, Barrett ruled that Lynnway Auto could present evidence of the alleged spoliation at trial and would be entitled to an instruction that the jury could — but was not required — to infer from the deletion of the communication source code that its contents were unfavorable to Innova. Reasonable inferences

Barrett concluded that Innova was on notice of possible litigation no later than May 4, 2017, when the police lieutenant had the conversation with the company’s customer service representative.

The manufacturer contended that the conversation, at most, placed it on notice of its duty to preserve the device but not the source code. But Barrett disagreed, citing the testimony of the plaintiffs’ expert regarding the necessity of having the entire source code to conduct the “static code analysis” properly.

The manufacturer also argued that it was not at fault for the spoliation because there was no evidence that it intentionally discarded the missing portion of source code, and the precise date when the source code had been discarded was unknown.

But Barrett deemed the plaintiffs to have sufficiently established that the evidence had been negligently lost or destroyed by citing the company’s “informal custom and practice” of retaining the source code for its scan tool models for approximately two years after a particular model was last sold, coupled with an invoice showing that six of the scan tools had been sold to Wal-Mart about a year before the accident.

The plaintiffs’ expert also averred that it is standard practice in the industry for the purpose of troubleshooting to retain all portions of a source code, rather than selectively discard portions.

Here, the manufacturer had retained some but not all the source code for its scan tool and not explained why or how that happened, Barrett noted.

New motion responses in suits against Wood County authorities deny spoliation

PARKERSBURG, W.Va. (WTAP) - New filings in two lawsuits against current and former Wood County officials show how the defendants are responding to accusations that they destroyed evidence.

The two lawsuits filed by plaintiffs Timothy Allen and Mark Harris in 2021 center around alleged abuse and harassment by former Wood County Sheriff Steve Stephens.

Both plaintiffs filed motions asking the Wood County Commission and Sheriff’s Department be sanctioned for either failing to produce or destroying evidence in the form of emails, text messages and other digital records.

In responses to those motions filed last week, counsel for the defendants assert that no sanctions are warranted because neither the sheriff’s department nor the county commission intentionally destroyed or failed to look for evidence.

According to the motion responses, the IT specialists for both the commission and the sheriff’s department were overworked and unfamiliar with the protocols of performing court-mandated searches through digital records, rather than acting in bad faith:

“[T]he actions, or inactions, of [the IT specialists} are attributable to being overextended and unfamiliar with certain litigation hold functions within software, rather than being attributable to a bad faith state of mind.”

These most recent filings in these lawsuits come after two other lawsuits against the County Commission, Sheriff’s Department, and Steve Stephens were settled earlier this year.

“Pharma Bro” Avoids the Most Serious Adverse Inference Sanction for Spoliating Evidence Under Rule 37(e)

In an opinion out of the Southern District of New York addressing alleged spoliation of ESI, Judge Denise Cote found that the plaintiffs – the Federal Trade Commission and a collection of states – only sufficiently established half of their spoliation claims sought against defendant Martin Shkreli.

Shkreli, aka “Pharma Bro,” and his business partner, Kevin Mulleady, launched Vyera in 2014.

The plaintiffs alleged that in November 2017 Vyera entered into several anti-competitive agreements, including exclusive supply agreements, with a company preparing to seek FDA approval for the manufacture of the active ingredient in one of Vyera’s branded drug products.

The plaintiffs sought sanctions under Rule 37(e) against Shkreli, alleging he failed to preserve messages on two cellphones despite receiving a litigation hold in late 2015.

The first phone – a company-issued phone – was allegedly used by Shkreli to communicate about issues relevant to the case.

When Shkreli’s attorney sent the company phone to be forensically imaged in April 2020, it was discovered that it had been factory reset (i.e., wiped) sometime in 2016 or 2017.

While neither Shkreli nor Vyera produced communications from this phone, Vyera represented that company-issued phones were backed up to iCloud.

The second was a contraband phone Shkreli appeared to have possessed while in prison.

A Vyera executive testified he communicated with Shkreli through this phone via WhatsApp from the end of 2018 through February 2019.

Mulleady also produced two texts from Shkreli dated during his incarceration.

Vyera said it did not possess, and likely could not access, the WhatsApp messages.

When asked at his deposition if he possessed a phone in prison, Shkreli invoked his Fifth Amendment right against self-incrimination.

To address Shkreli’s spoliation, the plaintiffs asked the court to impose a mandatory adverse inference under Rule 37(e)(2) instructing the jury to accept the presumption that this missing ESI would support that Shkreli was continuously involved in Vyera’s business from 2015 to 2021, including while incarcerated, and that he engaged in the challenged anti-competitive conduct.

Alternatively, under Rule 37(e)(1), the plaintiffs sought curative measures to disallow Shkreli from arguing or introducing evidence to disprove these presumptions.

Shkreli, on the other hand, argued that the plaintiffs failed to prove the communications existed and, to the extent they had, that there was no intent to deprive the plaintiffs of the communications.

Therefore, Shkreli requested the more modest curative measure that he be precluded from arguing that he did not communicate with two Vyera employees about the company during his incarceration.

The court found the plaintiffs failed to show that the company phone’s data had not been preserved, and ordered Vyera to search its iCloud backup data and produce any messages from Shkreli.

The court, however, did find that Shkreli failed to preserve the data on his contraband phone, but adopted Shkreli’s more narrowly drawn sanctions.

Interestingly, in exercising its discretion to impose these lesser sanctions, the court did not specifically address whether Shkreli intended to deprive the plaintiffs of spoliated communications that would have given rise to the more serious sanctions of Rule 37(e)(2).

This opinion illustrates the high threshold litigants must satisfy to secure sanctions under Rule 37(e)(2).

Even where the adverse party’s conduct represents a “close call,” courts generally are reluctant to impose the more serious sanctions under Rule 37(e)(2) and, instead, will opt to impose remedial measures under Rule 37(e)(1).

CC-21-05418-A | DARA HARRIS, INDIVIDUALLY, AND AS REPRESENTATIVE OF THE ESTATE OF ROBERT BUNTYN,, BRYAN BUNTYN, INDIVIDUALLY vs. NEWKIRK LOGISTICS, INC., DESIREE RAISHON BOYD, BRUCKNER LEASING CO, INC.

TEXAX LEGAL STANDARD

The Texas Supreme Court has “adopted a framework governing the imposition of remedies for evidence spoliation.” Petroleum Sols., Inc. v. Head, 454 S.W.3d 482, 488 (Tex. 2014) (citing Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 14 (Tex. 2014)).

Under the Brookshire Brothers framework, “to find that spoliation occurred, the trial court must make affirmative determinations as to two elements.

First, the party who failed to produce evidence must have had a duty to preserve the evidence.” Id. (citing Brookshz're, 438 S.W.3d at 20).

“Second, the nonproducing party must have breached its duty to reasonably preserve material and relevant evidence.” Id. (citing Brookshire, 438 S.W.3d at 20-21 & n.8).

If there is a finding of spoliation, “the trial court must exercise its discretion in imposing a remedy. In determining what remedy, if any, is appropriate, the court should weigh the spoliating party’s culpability and the prejudice to the non-spoliating party.” Id. at 488-89.

“[C]ourts generally follow a two-part test in determining whether a particular sanction for discovery abuse is just.” Petroleum Solutions, 454 S.W.3d at 489.

“First, a direct relationship must exist between the offensive conduct, the offender, and the sanction imposed. To meet this requirement, a sanction must be directed against the wrongful conduct and toward remedying the prejudice suffered by the innocent party.” Id. (internal citations omitted).

“Second, a sanction must not be excessive, which means it should be no more severe than necessary to satisfy its legitimate purpose. Id. (internal citations and quotation omitted).

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR SPOLIATION SANCTIONS ORDER DENYING DEFENDANTS’ MOTION FOR SPOLIATION SANCTIONS

Third lawsuit filed against Wood County Commission, Stephens

New motion responses in suits against Wood County authorities deny spoliation -

PARKERSBURG, W.Va. (WTAP) -

A third lawsuit has been filed against the Wood County Commission, Sheriff’s Department, and Steve Stephens.

The complaint was filed in Wood County Circuit Court Friday morning by Timothy Allen, a current Wood County deputy sheriff.

Bailess Law Firm, the law firm representing Allen, is the same one representing Mark Harris and Della Matheny in two other suits against the county and Stephens.

The suit alleges Sheriff Stephens threatened to demote Allen after learning Allen was involved in a relationship with Deputy Tasha Hewitt.

Hewitt later filed a complaint against the sheriff, claiming a hostile work environment in the sheriff’s office.

Deputy Allen is seeking a jury trial to determine damages.

“Retaliation in the workplace is a serious safety issue,” said Todd Bailess, one of Allen’s attorneys. “We should commend employees like Sgt. Allen who have the courage to speak out against discriminatory treatment of women at the hands of those in power.”

Sheriff Stephens could not be reached for comment.

County Commissioner Bob Tebay said he was “sorry to hear that,” when told about the filing Friday afternoon.

Commissioners Jimmy Colombo and Blair Couch couldn’t be reached for comment.

In responses to those motions filed last week, counsel for the defendants assert that no sanctions are warranted because neither the sheriff’s department nor the county commission intentionally destroyed or failed to look for evidence.

According to the motion responses, the IT specialists for both the commission and the sheriff’s department were overworked and unfamiliar with the protocols of performing court-mandated searches through digital records, rather than acting in bad faith:

“[T]he actions, or inactions, of [the IT specialists} are attributable to being overextended and unfamiliar with certain litigation hold functions within software, rather than being attributable to a bad faith state of mind.”

These most recent filings in these lawsuits come after two other lawsuits against the County Commission, Sheriff’s Department, and Steve Stephens were settled earlier this year.

One of the most active areas of litigation in recent years is the spoliation of evidence.

Although the Supreme Court of Texas’ opinion in Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014) defined both the type of spoliation that may be sanctioned and the type of sanctions available, litigation continues to be abundant.

Brookshire Bros. – The Leading Texas Decision

Brookshire Bros. was a grocery store slip and fall case in which the plaintiff had said he was not injured at the time.

Shortly thereafter, he said he was injured, so the store manager preserved the surveillance video footage from two hours before the incident through several hours afterward.

The plaintiff’s attorney wanted more than two hours before the incident, but that had been recorded over under the store’s general 30-day video loop.

The trial court allowed the jury to hear evidence of the destruction of the video and submitted the spoliation instruction.

The Court of Appeals affirmed.

The Supreme Court reversed, finding an abuse of discretion.

It decided that as a matter of law the trial judge determines whether spoliation has occurred and what sanctions, if any, to impose.

Evidence of the spoliating conduct is inadmissible.

It is the complaining party’s burden to prove there was a duty to preserve, i.e., that the accused party knew there was a substantial chance a claim would be filed (not just an abstract possibility).

If there was a duty, the court determines whether the breach was intentional or negligent and whether the complaining party was prejudiced.

Prejudice is proved by showing that the spoliated evidence was relevant and material on a key issue, the evidence would have been harmful to the spoliator’s case or helpful to the non-spoliator’s case; and the evidence was not cumulative.

Sanctions imposed must be proportional, that is, they must relate directly to the conduct giving rise to the sanction and may not be excessive.

Key considerations are: the level of culpability of the spoliator and the degree of prejudice to the opposing party.

Sanctions may include the following:

an order prohibiting further discovery by the spoliator;

an order designating certain facts established;

a contempt order;

exclusion of the evidence;

award of attorney’s fees and/or costs;

dismissal with or without prejudice;

striking pleadings, default judgment; and a jury instruction.

The Brookshire Brothers opinion specifically stated that a jury instruction is to be used as a last resort – only when the spoliation is intentional, with one exception.

If the spoliation is merely negligent, but it deprives the opposing party of any meaningful ability to present its claim, the jury instruction may be given.

After Brookshire Bros., The Pattern Jury Charge was amended.

PJC § 1.12 (2016) provides the following:

[The spoliating party] [destroyed/failed to preserve] [describe evidence].

You [must/may] consider that this evidence would have been unfavorable to [spoliating party] on the issue of [describe issue(s)] to which evidence would have been relevant.

This allows argument to the trial court over whether to use must or may.

Publisher says prince destroyed key evidence

The legal war between Prince Harry and major British tabloids continues as an attorney for the publisher of The Sun has accused the royal of destroying evidence in his phone hacking case.

Attorney Anthony Hudson, representing News Group Newspapers, has alleged the Duke of Sussex deliberately deleted text messages with J.R. Moehringer, the ghostwriter of his tell-all memoir Spare . Hudson told London’s High Court on Thursday that Prince Harry had created an “obstacle course” to prevent the publisher from obtaining potential evidence.

The judge ordered a statement from Prince Harry to explain “what happened to the messages between himself and his ghostwriter and whether any attempts were made to retrieve them.” New York Daily News

proof that defendants tried to tamper with or destroy documents. 

charged with obstruction

disrupting

obstructing or conspiring to obstruct

They include Kevin Seefried, a Delaware man who threatened a Black police officer with a pole attached to a Confederate battle flag as he stormed the Capitol.

refusing to provide documents or testimony

Spoliation Sanctions & Summary Judgment Denial: A Wake-Up Call for Mobile Device Preservation | JD Supra

A recent decision in ediscovery case law, Maziar v. City of Atlanta from June 10, 2024, underscores the crucial importance of early preservation, particularly regarding text messages from mobile devices.

This case, presided over by United States District Judge Steven Grimberg, offers valuable lessons for litigation professionals.

Notably, it represents one of the first instances Case of the Week has covered the denial of a summary judgment motion as a sanction under Federal Rule of Civil Procedure 37(e) for the failure to preserve data.

Case Overview:

The plaintiff, a former Director of the Atlanta Mayor’s Office of Immigration Affairs, filed a retaliation complaint against the City of Atlanta.

The crux of the dispute centered around text messages on the supervisor’s mobile device, which were not properly preserved despite a litigation hold.

Key Timeline:

November 2020:

Plaintiff’s counsel sends a demand letter requesting a litigation hold.

April 2021: Incident leading to plaintiff’s termination occurs in which supervisor is key witness. May 2021: City issues a litigation hold and terminates the plaintiff. December 2022: Supervisor leaves job; City wipes the supervisor’s phone. January 2023: Supervisor upgrades personal phone, losing all previous text messages.

The Court’s Analysis:

Judge Grimberg’s decision hinged on Federal Rule of Civil Procedure 37(e), which governs sanctions for failure to preserve electronically stored information (ESI).

The Court made a crucial distinction between Rule 37(e)(1), which focuses on prejudice, and Rule 37(e)(2), which requires a finding of intent to deprive.

While the Court did not find bad faith on the City’s part, it determined that the plaintiff was indeed prejudiced by the loss of potentially crucial text messages.

This prejudice stemmed from the inability to contextualize a cropped text message and access other relevant evidence from the supervisor’s phone.

Sanctions Imposed:

In a significant move, the Court denied the City’s motion for summary judgment as a sanction.

Additionally, extensive monetary sanctions were awarded to cover the plaintiff’s costs and fees related to both the sanctions and summary judgment motions.

Key Takeaways for Litigation Professionals:

Timely Preservation is Crucial:

Even in seemingly minor employment matters, strict attention to preservation, collection, and production of ESI is essential.

Early identification and preservation of data, especially from mobile devices, can prevent costly consequences.

Implement Robust Preservation Processes: Develop and maintain tools and processes for early identification and preservation of ESI.

This proactive approach can significantly mitigate risks and reduce costs in the long run.

Consider Remote Collection Tools:

Utilize targeted remote collection tools for mobile devices.

These can be cost-effective solutions to preserve critical data without disrupting business operations.

Recognize the Broad Impact of Spoliation:

The loss of even a few text messages can potentially upend an entire case.

Courts are increasingly willing to impose severe sanctions, including the denial of summary judgment motions, for failure to preserve relevant ESI.

Balance Cost and Risk:

While it’s important to consider the cost of preservation against the likelihood of litigation, err on the side of caution.

The potential consequences of under-preservation far outweigh the initial costs of proper data management.

Conclusion:

The Maziar v. City of Atlanta case serves as a powerful reminder of the importance of proactive ediscovery practices.

As litigation professionals, we must constantly balance the risk vs. cost in our approach to data preservation, especially in today’s environment where mobile devices play an increasingly central role in business communications.

By implementing robust preservation protocols and leveraging appropriate technologies, we can better serve our clients and avoid costly sanctions that could derail even the strongest cases.

Federal District Court Denied Spoliation Motion Where Plaintiffs Attempted to Argue that a Bus Company Failed to Preserve Video | JD Supra

Williams v. First Student, Inc., 2024 WL 1132237, No. 20-cv-1176 (CPO) (SAK) (D. N.J. Mar. 15, 2024)

The plaintiffs’ sought to obtain a preclusion of expert evidence and adverse inference at trial for failure to maintain video after an infant plaintiff disembarked one school bus and was struck by another company’s school bus, causing serious injury.

The defendant-bus company provided testimonial evidence that they attempted to retrieve video, but that there was a malfunction and no video was ever created.

The plaintiffs attempted to argue that certain codes on the hard drive indicated items were altered or moved and referenced a code describing the “Recycle Bin.”

The defendant’s expert noted that this was actually an error code.

The court ruled the plaintiffs had not met their burden to establish spoliation.

Plaintiffs Allege Village Negligence After Fatal Police Chase Cook County Record

A high-stakes legal battle involving a police chase that resulted in severe injuries and death has culminated in a $33.5 million jury award for the plaintiffs.

The lawsuit, filed by Aja Seats and Sabrina Wright on behalf of John Kyles and Duane Dunlap respectively, was brought against the Village of Dolton in Cook County Circuit Court on November 5, 2019.

The case centers around an October 9, 2016 incident where a high-speed police chase led to the death of John Kyles and severe injuries to Duane Dunlap.

Plaintiffs claimed that Dolton police officers Lewis Lacey and Ryan Perez pursued a vehicle driven by Demetrius Sorrells at dangerously high speeds, resulting in a crash.

Crucially, the plaintiffs argued that evidence from Perez’s dashboard camera, which could have provided key insights into the chase, was lost or destroyed—a claim of spoliation of evidence.

During the trial that began on July 26, 2022, and concluded on August 3, 2022, both Lacey and Perez testified about their actions during the chase.

Lacey admitted to reaching speeds up to 75 miles per hour while pursuing Sorrells but claimed he did not see Sorrells's vehicle at certain points.

Perez testified that his dashboard camera would have recorded automatically when he activated his lights and sirens but could not confirm if it was working properly or if any footage was preserved.

Expert witnesses bolstered the plaintiffs' case.

Jay Przybyla presented GPS data showing the positions and speeds of the police vehicles during the chase, while Dennis Waller criticized Dolton police for failing to ensure dashboard cameras were operational and preserving critical video evidence.

The jury found in favor of Dolton on claims of willful and wanton conduct but sided with the plaintiffs on spoliation of evidence.

They awarded $33.5 million in damages due to the loss or destruction of crucial dashboard camera footage.

On appeal, Dolton argued various points including improper jury instructions and insufficient proof of spoliation; however, these arguments were rejected by Justice R. Van Tine who affirmed the jury’s verdict.

Representing the plaintiffs were attorneys whose efforts led to this significant judgment against Dolton.

The case was presided over by Judge Elizabeth M. Budzinski under Case ID No. 2019 L 012256.

Duty to Preserve Evidence

Navigating the timing and scope of an individual’s or entity’s duty to preserve information (including ESI, hard copy documents, and other tangible items) in any particular matter is both critical and challenging.

Knowing that courts sometimes impose severe penalties against individuals and entities that fail to fulfill their duty to preserve, counsel may be tempted to recommend early and expansive preservation efforts.

However, an overly conservative preservation approach has drawbacks because it may:

Require the individual or entity to retain a third-party vendor to implement and manage sophisticated preservation tools.

Limit an individual’s or entity’s access to the documents and information it needs to conduct its routine business.

This article provides guidance on the duty to preserve in federal civil litigation to help counsel effectively advise their clients on preservation-related matters.

Specifically, it addresses:

The standards courts use to determine if an individual or entity has a duty to preserve.

What information is within the scope of the duty to preserve.

When an individual or entity may be sanctioned or otherwise liable for failing to comply with the duty to preserve and the nature of available sanctions.

(For the complete version of this resource, which includes more on developing a preservation protocol, see Duty to Preserve Evidence (Federal) on Practical Law;

for a collection of resources to help counsel preserve documents and ESI, see Preserving Documents and Electronically Stored Information Toolkit on Practical Law.)

When the Duty to Preserve Begins and Ends

The general duty to preserve potential evidence in federal litigation is a creature of federal common law, even though some federal statutes impose preservation obligations on certain individuals and entities (see, for example, U.S. Dep’t of Labor v. Fed. Armament, LLC, 2022 WL 2317275, at *3 (W.D. Ark. June 28, 2022) (noting the defendant’s statutory retention obligation); Brown v. Tellermate Holdings Ltd., 2014 WL 2987051, at *19 (S.D. Ohio July 1, 2014)).

An individual or entity generally has a duty to preserve evidence when the individual or entity reasonably anticipates litigation (see, for example, A.W.S. v. Southampton Union Free Sch. Dist., 2022 WL 1478736, at *6 (E.D.N.Y. Feb. 28, 2022); see also Hawkins v. Coll. of Charleston, 2013 WL 12145958, at *2 (D.S.C. Sept. 17, 2013) (citing Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001))).

(For a model document retention policy, with explanatory notes and drafting tips, see Document Retention Policy on Practical Law.) Nuance Among Federal Jurisdictions

Because courts incrementally develop the common law duty to preserve through case law, the test for whether an individual has a duty to preserve varies slightly among jurisdictions.

For example, the US Court of Appeals for:

• The Fifth Circuit requires an individual or entity to preserve potentially relevant evidence when it has “notice that the evidence is relevant to the litigation or should have known that the evidence may be relevant”

(Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015) (citing Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 612 (S.D. Tex. 2010))).

• The Seventh Circuit requires an individual or entity to preserve potentially relevant evidence when it knows or should know that litigation is imminent (Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008)).

•  The Federal Circuit requires an individual or entity to preserve potentially relevant evidence when litigation is reasonably foreseeable (Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011) (citing Silvestri, 271 F.3d at 590 and West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999))).

(For more on each federal circuit court’s standard for when the duty to preserve arises, see Spoliation Sanctions by US Circuit Court Chart on Practical Law.)

Counsel must consider the specific facts and circumstances to determine when their client should reasonably anticipate litigation, thereby triggering the duty to preserve.

While jurisdiction-specific standards vary slightly, counsel should avoid relying on a narrow construction of any particular standard because:

Counsel often cannot predict with certainty: where a prospective plaintiff may file the anticipated litigation; and if the prospective plaintiff files the anticipated litigation in federal court under the court’s diversity jurisdiction, whether the court will apply the federal or state duty to preserve standard.

Spoliation sanctions, when issued, can be severe

(see Penalties for Violating the Duty to Preserve below).

Application of State Law Duty to Preserve Standards

When a spoliation claim arises, a federal court presiding over a case based on diversity jurisdiction must determine whether federal or state law governs the claim.

If the court determines that federal and state law lead to varying results, the court must determine whether spoliation is:

A procedural matter governed by federal law (see, for example, Silvestri, 271 F.3d at 590 (disregarding the parties’ agreement that state law controlled and applying federal law); Toste v. Lewis Controls, Inc., 1996 WL 101189, at *2 n.2 (N.D. Cal. Feb. 27, 1996)).

A substantive matter governed by the forum state’s law (see, for example, Rowe v. Albertsons, Inc., 116 F. App’x 171, 174-75 (10th Cir. 2004); ArcelorMittal Ind. Harbor LLC v. Amex Nooter, LLC, 2018 WL 509890, at *1 (N.D. Ind. Jan. 23, 2018) (collecting cases); Toste, 1996 WL 101189, at *2 n.2).

Because federal courts do not take a uniform approach regarding the law that governs duty to preserve issues, counsel should both:

Familiarize themselves with all potentially applicable standards regarding a litigant’s duty to preserve.

Develop a conservative preservation protocol to comply with the broadest- or furthest-reaching standard (for the complete version of this resource, which includes more on developing a preservation protocol, see Duty to Preserve Evidence (Federal) on Practical Law). (See, for example, Keller v. United States, 58 F.3d 1194, 1197 n.6 (7th Cir. 1995) (collecting cases).)

Triggering Events

Duty to preserve standards, whether considered generally or in a particular jurisdiction, do not provide a bright-line rule regarding when an individual’s or entity’s duty to preserve information arises.

Instead, counsel must consider the specific facts and circumstances to determine when their client should reasonably anticipate litigation, thereby triggering the duty to preserve.

For example, courts have held that an individual’s or entity’s duty to preserve arose when:

It decided to initiate litigation (see Apple Inc. v. Samsung Elecs. Co., 888 F. Supp. 2d 976, 997 (N.D. Cal. 2012)).

It received a letter threatening litigation (see Gonzalez-Bermudez v. Abbott Labs. PR Inc., 214 F. Supp. 3d 130, 162 (D.P.R. 2016)).

It was involved in prior litigation regarding the same subject matter (see Williams v. BASF Catalysts LLC, 2016 WL 1367375, at *7 (D.N.J. Apr. 5, 2016); Stinson v. City of New York, 2016 WL 54684, at *4 (S.D.N.Y. Jan. 5, 2016)).

It learned of related disputes between similarly situated parties in the same industry (see Phillip M. Adams & Assocs., L.L.C. v. Dell, Inc., 621 F. Supp. 2d 1173, 1190-91 (D. Utah 2009)).

A governmental agency initiated an enforcement action against it (see M & T Mortg. Corp. v. Miller, 2007 WL 2403565, at *5-6 (E.D.N.Y. Aug. 17, 2007)).

A potential plaintiff filed an accident report (see McCabe v. Wal-Mart Stores, Inc., 2016 WL 706191, at *2 (D. Nev. Feb. 22, 2016)).

(For more on when a party should reasonably anticipate litigation, see Reasonable Anticipation of Litigation Under FRCP 37(e): Triggers and Limits and Implementing a Litigation Hold on Practical Law.)

Who Has a Duty to Preserve

While most courts discuss a party’s or third party’s duty to preserve, some notable decisions emphasize that counsel also have a duty to preserve potentially relevant information.

Specifically, courts have noted that the duty to preserve “runs first to counsel” and further require counsel to advise the client regarding the client’s obligation to preserve potentially relevant information (see Indus. Quick Search, Inc. v. Miller, Rosado & Algois, LLP, 2018 WL 264111, at *10 (S.D.N.Y. Jan. 2, 2018) (collecting cases); see also Mooradian v. FCA US, LLC, 286 F. Supp. 3d 865, 870 (N.D. Ohio 2017)).

In a landmark decision, the US District Court for the Southern District of New York elaborated on counsel’s duty, holding that counsel must implement and oversee compliance with a litigation hold and monitor the client’s document production efforts (Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) (concluding that both counsel and the client must “make certain that all sources of potentially relevant information are identified and placed ‘on hold’”); see also Point Blank Sols., Inc. v. Toyobo Am., Inc., 2011 WL 1456029, at *12 (S.D. Fla. Apr. 5, 2011) (internal citations omitted)).

While most courts discuss a party’s or third party’s duty to preserve, some notable decisions emphasize that counsel also have a duty to preserve potentially relevant information.

Accordingly, counsel must take an active role in guiding clients during the entire preservation process.

To Whom a Party Owes the Duty to Preserve

To ascertain when a party first had a duty to preserve in the context of a motion for spoliation sanctions, some courts look at when the alleged spoliator first anticipated litigation with the party seeking sanctions (the movant), rather than when the alleged spoliator first anticipated litigation generally.

In other words, some courts recognize that, even for a single issue or incident, a party may have multiple duties to preserve that arise at different times and run to various potential adversaries.

Courts have addressed this issue when the movant advocates for a shifting duty to preserve by arguing that:

The alleged spoliator had a duty to preserve that arose when it reasonably anticipated that another entity (Adversary A) would initiate litigation against the alleged spoliator.

The duty that the alleged spoliator owed to Adversary A covered the same information that later became relevant in the present litigation between the movant and the alleged spoliator.

The alleged spoliator lost or destroyed the information that became relevant in the present litigation between the movant and the alleged spoliator:

while under a duty to preserve owed to Adversary A;

and before the alleged spoliator reasonably anticipated the present litigation with the movant.

The court should sanction the alleged spoliator in the present litigation.

Some courts reject this shifting duty concept.

These courts reason that the movant does not have standing to assert a spoliation claim because, at the time that the alleged spoliator lost or destroyed the evidence, the alleged spoliator owed a duty to Adversary A but not to the movant (see, for example, Rockman Co. (USA), Inc. v. Nong Shim Co., 229 F. Supp. 3d 1109, 1123 (N.D. Cal. 2017) (holding that the initiation of a government investigation does not create for the target of the investigation a duty to preserve to other, non-governmental individuals or entities);

In re Delta/Airtran Baggage Fee Antitrust Litig., 2015 WL 4635729, at *11 (N.D. Ga. Aug. 3, 2015) (holding that the receipt of a government subpoena did not trigger a duty to preserve owed to or enforceable by the plaintiffs in later civil litigation); Brigham Young Univ. v. Pfizer, Inc., 282 F.R.D. 566, 572 (D. Utah 2012)).

However, some courts may take a more liberal view and sanction parties for spoliation when the party generally anticipated litigation, regardless of whether the party anticipated litigation with the movant specifically (see, for example, Williams, 2016 WL 1367375, at *7 (noting that the duty to preserve generally runs to a specific party but holding that the case was an instance in which prior litigation with other similarly situated entities sensitized the defendant to the possibility of future, similar lawsuits); M & T Mortg. Corp., 2007 WL 2403565, at *5-6).

When the Duty to Preserve Ends

The standards governing when a duty to preserve arises generally also dictate when it ends.

Therefore, when an individual or entity no longer reasonably anticipates litigation, the individual or entity no longer has a duty to preserve.

At least one court has found that because a party did not lift its litigation hold, its duty to preserve persisted (see Moore v. Gilead Scis., Inc., 2012 WL 669531, at *4 n.2 (N.D. Cal. Feb. 29, 2012) (finding the conclusion of a government investigation irrelevant to the determination of whether a party had a continuing duty to preserve when the party did not lift its litigation hold)).

To avoid this result, counsel should promptly lift (or advise their client to lift) a litigation hold when counsel determine that the client should no longer anticipate litigation.

While lifting a litigation hold is not sufficient to terminate a duty to preserve, a court may find it to be either:

A necessary step for termination.

Evidence that the preserving party considered the issue and determined that it no longer anticipated additional litigation.

(For more on when counsel may lift a litigation hold, see Reasonable Anticipation of Litigation Under FRCP 37(e): Triggers and Limits on Practical Law; for a model litigation hold lift notice, with explanatory notes and drafting tips, see Litigation Hold Lift Notice on Practical Law.)

Information Subject to the Duty Preserve

An individual or entity with a duty to preserve need not preserve all information.

Rather, the duty to preserve generally extends only to information that:

Is unique.

Is in the individual’s or entity’s possession, custody, or control (for more information, see Possession, Custody, and Control of ESI in Federal Civil Litigation on Practical Law; but see La Belle v. Barclays Cap. Inc., 340 F.R.D. 74, 84 (S.D.N.Y. 2022) (holding that a corporate party had a duty to search employees’ personal devices once it became aware that employees used the devices for business purposes); Woods v. Scissons, 2019 WL 3816727, at *4 (D. Ariz. Aug. 14, 2019) (holding that the City of Prescott had a duty to preserve ESI that the city police department controlled where an individual police officer was the sole defendant and imputing the city’s spoliation to the individual defendant)).

The individual or entity knows (or should know) is:

relevant in the anticipated litigation;

reasonably calculated to lead to the discovery of admissible evidence;

reasonably likely to be requested during discovery; or the subject of pending discovery.

(See Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (internal citations omitted); see also EPAC Techs., Inc. v. HarperCollins Christian Publ’g, Inc., 2018 WL 1542040, at *17 (M.D. Tenn. Mar. 29, 2018); Harbor v. Cherniss, 2017 WL 2472242, at *2 (E.D. Cal. June 8, 2017); Czuchaj v. Conair Corp., 2016 WL 4161818, at *1 (S.D. Cal. Apr. 1, 2016).)

The scope of information that falls under a party’s duty to preserve varies slightly among jurisdictions, but counsel should avoid construing any particular standard too narrowly (see Nuance Among Federal Jurisdictions above).

For example, even if a party expects to litigate an anticipated lawsuit in a federal court where the federal common law provides a narrow duty to preserve, counsel should consider advising their client to preserve broadly to minimize the risk of sanctions.

(For more on each federal circuit court’s standard regarding when the duty to preserve arises, see Spoliation Sanctions by US Circuit Court Chart on Practical Law.)

Obligation to Preserve Multiple Copies or Versions of Documents

Several jurisdictions explicitly require an individual or entity to preserve only unique documents (including ESI), which relieves the individual or entity from having to preserve multiple copies of potentially relevant documents (see, for example, Marshall v. Dentfirst, P.C., 313 F.R.D. 691, 697 (N.D. Ga. 2016) (citing In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299 F.R.D. 502, 517-18 (S.D. W. Va. 2014)); Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 524 (D. Md. 2010) (citing Zubulake, 220 F.R.D. at 217)).

However, counsel and the client must exercise caution when deciding not to preserve one or more copies or versions of seemingly duplicative documents and should carefully consider whether the documents are truly duplicative (see, for example, Point Blank Sols., Inc., 2011 WL 1456029, at *11 (noting that “determining what constitutes an ‘identical’ copy which need not be retained is not always a simple analysis”)).

For example, an individual may possess a relevant contract as:

A word processing file (such as a Microsoft Word file) with metadata that reflects, in part, when the author drafted and edited the contract.

A PDF (image) file with metadata that reflects when the PDF was generated from the word processing file.

A hard copy with no metadata.

While all three items appear identical on their faces, they differ significantly in terms of their associated metadata.

If counsel treat them as duplicative and advise their client to preserve only the PDF or hard copy version, an opposing party may later accuse the client of spoliation if the word processing file’s metadata is relevant to the dispute.

If a client maintains multiple copies of a document that it must preserve and does not want to preserve all copies, counsel should either:

Advise the client to preserve the most robust version of the document, such as the native file.

If the client prefers to preserve only a less robust version of the document (for example, because the expense to locate and preserve the the native file is burdensome), ask all opposing parties to agree in writing not to seek the additional metadata available only in the most robust version.

Parties may willingly accept a less robust version of a duplicative document if that same concession is reciprocal (that is, if they too may produce a readily available version of a duplicative document, even if other, more robust versions exist).

Applicability of the Proportionality Principles to Preservation

The proportionality principles that govern discovery in federal civil litigation do not explicitly apply to the scope of a party’s duty to preserve information (Federal Rule of Civil Procedure (FRCP) 26(a)(1); 2015 Advisory Committee’s Note to FRCP 37(e) (explaining that FRCP 37(e) does not establish a duty to preserve but instead is based on the common law duty to preserve)).

However, some courts have extended the proportionality principles to a party’s duty to preserve information (see Victor Stanley, Inc., 269 F.R.D. at 523 (noting, critically, that few courts consider proportionality when analyzing the scope of the duty to preserve and collecting cases); see also Wai Feng Trading Co. v. Quick Fitting, Inc., 2019 WL 118412, at *5 (D.R.I. Jan. 7, 2019) (citing the 2015 Advisory Committee’s Note to FRCP 37(e) for the proposition that proportionality is relevant to the determination of whether the individual or entity took reasonable steps to preserve ESzI); Al Otro Lado, Inc. v. Nielsen, 328 F.R.D. 408, 416 (S.D. Cal. 2018) (noting that the scope of the duty to preserve is coextensive with the scope of discovery under FRCP 26, including the proportionality limitations)).

These courts’ positions are well founded because the duty to preserve is connected to the discovery process.

Specifically:

The federal common law duty to preserve standards almost all define their respective scopes in terms of potential evidence.

Information cannot be evidence if it is not first discoverable. Information is not discoverable if the process to produce it is disproportionate to the litigation (FRCP 26(b)(1)).

However, it is risky to exclude potentially relevant information from a preservation protocol based on a unilateral determination that it is not discoverable (such as due to proportionality concerns, inaccessibility, or other factors that may exclude documents from discovery).

For example, the requesting party may later:

Request the subject information in discovery.

Contest the responding party’s proportionality-based objection to its discovery request.

Move the court to resolve the proportionality question and compel the responding party to produce the subject information.

If the court compels the responding party to produce the subject information and the responding party has since destroyed or otherwise lost the information because the responding party did not take care to preserve it, the court may sanction the responding party for spoliation (see Penalties for Violating the Duty to Preserve below).

To safely exclude potentially relevant information from a preservation protocol, counsel should proactively reach out to opposing counsel to seek agreement on the exclusion of specific, potentially relevant information from the preservation protocol.

If counsel cannot secure an explicit, documented agreement permitting a party to exclude a subset of potentially relevant information from its preservation efforts, they generally should:

Advise their client to err on the side of preserving potentially relevant information.

Remind clients that preservation does not obligate production and they may object to producing preserved information due to proportionality concerns or otherwise.

Reassessing the Scope of the Duty to Preserve

Counsel’s expectation about what information is relevant may change over the course of litigation (for example, as new parties become involved or as existing parties assert and abandon various claims).

As the scope of litigation changes, so too does the scope of information that counsel and the client must preserve (see, for example, La Belle, 340 F.R.D. at 84 (holding that a corporate party’s duty to preserve initially did not extend to employees’ personal devices but later expanded to include these personal devices)).

Counsel and their clients should remain aware of their preservation obligations and efforts throughout a case and make adjustments as necessary.

Penalties for Violating the Duty to Preserve

Preservation-related penalties are among the most severe penalties that courts issue.

Depending on the relevant jurisdiction and conduct at issue, a party adversely affected by another individual’s or entity’s loss of potentially relevant information may:

Move the court to sanction the alleged spoliator for its failure to fulfill its duty to preserve.

Assert an independent cause of action against the alleged spoliator.

Spoliation Sanctions

Courts may sanction parties for failing to preserve potentially relevant information.

Because federal courts classify spoliation sanctions as an evidentiary issue related to their inherent authority to manage litigation, they apply federal procedural rules and federal common law when determining:

If sanctions are warranted.

Which sanction is appropriate. (See, for example, Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009); Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449 (4th Cir. 2004); Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 267 (2d Cir. 1999); Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993).)

FRCP 37(e)(2)dictates the type of sanctions a court may issue in various scenarios, with more severe sanctions available if the spoliating party acted with the intent to deprive the requesting party of the lost ESI.

When identifying the applicable standard for sanctions for a particular case, counsel should consider that:

FRCP 37(e) governs a party’s ESI spoliation in all federal courts.

Each circuit’s unique common law governs a party’s loss or destruction of hard copy documents and other tangible evidence.

(For more on cases in which courts have sanctioned parties for spoliation, see Document Discovery Case Tracker:

Sanctions and Cost Recovery on Practical Law.)

ESI Loss

A federal court may sanction an individual or entity for ESI spoliation when the individual or entity:

Has a duty to preserve ESI.

Does not take reasonable steps to preserve relevant ESI.

Loses the ESI.

Cannot restore or replace the lost ESI through additional discovery.

(FRCP 37(e); 2015 Advisory Committee’s Note to FRCP 37(e).)

FRCP 37(e)(2) dictates the type of sanctions a court may issue in various scenarios, with more severe sanctions available if the spoliating (responding) party acted with the intent to deprive the requesting party of the lost ESI (for more on the requisite intent, see Sanctions for ESI Spoliation Under FRCP 37(e):

Overview on Practical Law).

However, some courts continue to sanction parties for ESI spoliation even when the challenged conduct does not prejudice another party under FRCP 37(e)(1) or meet the requisite intent under FRCP 37(e)(2).

In these cases, courts rely on their inherent authority to sanction a party for ESI spoliation, regardless of FRCP 37(e)’s limitations on:

What conduct is sanctionable.

Which sanctions are permissible in various contexts.

(For more on ESI spoliation sanctions, see Sanctions for ESI Spoliation Under FRCP 37(e): Overview and FRCP 37(e) ESI Spoliation Sanctions Flowchart on Practical Law.)

Loss of Hard Copy Documents or Other Tangible Items

There is no procedural rule specifying when a federal court may sanction a party for losing or destroying hard copy documents or other tangible items.

Rather, each circuit has defined through case law when a court may sanction a party for spoliating non-ESI.

For example:

The Second Circuit permits a court to issue an adverse inference sanction when it finds that the spoliating party acted negligently (see Best Payphones, Inc. v. City of New York, 2016 WL 792396, at *4 (E.D.N.Y. Feb. 26, 2016) (distinguishing between the applicable standard for tangible evidence and ESI and citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002)); but see Aquino v. Alexander Cap., LP, 2023 WL 2751541, at *8 (S.D.N.Y. Mar. 31, 2023) (generally holding that FRCP 37(e) superseded Residential Funding Corp. without addressing the distinction between tangible evidence and ESI)).

The Tenth Circuit requires a court to find that an entity acted in bad faith before issuing an adverse inference sanction (see Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997)).

(For more on the types of sanctions and standards of culpability in federal circuit courts for spoliation of non-ESI, see Spoliation Sanctions by US Circuit Court Chart on Practical Law.)

Spoliation Cause of Action

While the FRCP and federal common law provide for procedural sanctions against a spoliating party in federal civil litigation, no federal authority recognizes an independent cause of action for spoliation of evidence (see Silvestri, 271 F.3d at 590; Aspen Am. Ins. Co. v. Interstate Warehousing, Inc., 372 F. Supp. 3d 709, 724 (N.D. Ind. 2019); ABC Bus. Forms, Inc. v. Pridamor, Inc., 2009 WL 4679477, at *3 (N.D. Ill. Dec. 1, 2009); Lombard v. MCI Telecomms. Corp., 13 F. Supp. 2d 621, 627 (N.D. Ohio 1998)).

However, some states recognize a substantive, independent tort cause of action against individuals or entities that destroy or lose potentially relevant information, and parties sometimes pursue those state law claims in federal court

• (see, for example, Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363, 367 (9th Cir. 1992)

• (presiding over the case under its diversity jurisdiction and noting that state law controlled the spoliation counterclaim); Lord v. Flanagan, 2014 WL 715714, at *1 (D. Mont. Feb. 24, 2014) (permitting the plaintiff to amend his complaint to assert state law spoliation claims); Cummerlander v. Patriot Preparatory Acad., 2013 WL 5969727, at *2 (S.D. Ohio Nov. 8, 2013) (holding that federal law governs spoliation sanctions and state law governs any spoliation cause of action)).

For example, some states permit an individual harmed by the loss of evidence (spoliation plaintiff) to assert a spoliation claim against:

Only a third-party spoliator (namely, a spoliator that is not a party to the underlying litigation).

• Examples include:

• Florida (see Kimball v. Publix Super Mkts., Inc., 901 So. 2d 293, 296 (Fla. 2d DCA 2005);

• Lincoln Ins. Co. v. Home Emergency Servs., Inc., 812 So. 2d 433, 434 (Fla. 3d DCA 2001));

• Alabama (see Smith v. Atkinson, 771 So. 2d 429, 438 (Ala. 2000)); and Montana (see Oliver v. Stimson Lumber Co., 993 P.2d 11, 18 (Mont. 1999)).

Either a third-party spoliator or a first-party spoliator (that is, a spoliator that is a party to the underlying litigation).

Examples include:

• Ohio (see Smith v. Howard Johnson Co., 615 N.E.2d 1037, 1038 (Ohio 1993));

• Connecticut (see Diana v. NetJets Servs., Inc., 974 A.2d 841, 845 (Conn. Super. Ct. 2007);  Rizzuto v. Davidson Ladders, Inc., 905 A.2d 1165, 1173 (Conn. 2006));

• West Virginia (see Williams v. Werner Enters., Inc., 770 S.E.2d 532, 538 (W. Va. 2015));

• and Alaska (see Nichols v. State Farm & Cas. Co., 6 P.3d 300, 303 (Alaska 2000)).

States recognizing an independent tort claim for spoliation of evidence also vary regarding whether:

A spoliation plaintiff may prevail in a spoliation cause of action by proving that the spoliator acted negligently or whether the spoliation plaintiff must prove intentional spoliation.

The alleged spoliator must have some independent relationship with or obligation to the spoliation plaintiff (such as a contractual relationship).

The spoliation plaintiff must wait until the underlying litigation concludes to assert the spoliation claim.

When state law applies, counsel should carefully review the forum state’s law on the issue.

[mithi-technologies]

How storage tiering enables long term email data retention at 60% reduced costs

Why is long-term data retention such a big challenge?

Here are some global statistics about the humongous growth of email data:

In actual numbers,

an average user’s mailbox grows by 4GB every year, and

each business user sends and receives a total of 160 emails a day (as of 2022. Source: Earthweb)

This is BIG data and a big problem too for any long-term data retention strategy.

Managing this high Volume, Velocity, and Variety of emails is challenging for an organization.

How do you cope with this as email boxes grow to their maximum limits on MS 365, MS Exchange, Google Workspace, or other email solutions?

Traditional responses to growing/filling mailboxes can be unproductive

Traditional email preservation methods create fragmentation and make it challenging to locate information on-demand besides the management headaches and escalating costs. 

Most cloud email services provide sufficiently large mailboxes suitable to start with but soon fill up.

To counteract this storage overflow, you may need to either purchase a higher plan with additional storage or clean up individual email stores – a task that can take away many productive hours.

Besides being Risky, Costly, and Clunky

Besides the loss of user productivity, there are other business impacts from email storage getting full:

Performance Degradation

Growing mailboxes may overload the email apps and slow down their performance.

Cost Implications

Mailboxes approaching their limits need more resources, either as expensive plan upgrades or the purchase of additional storage.

Data & Compliance Risks

To keep within quota limits, users typically download and delete data to create space in their mailboxes, increasing risks for the organization in maintaining a complete record of exchanging information over email.

Hard to Locate information

Unless the organization has subscribed to an Archival service, the lack of a centralized store makes it very challenging to locate old emails when required as a reference or evidence during an audit, investigation, or litigation.

Related: Why Archive email

Storage tiering is a scalable solution for long term email data retention

Step 1: Capture a copy of all new emails in Vaultastic

Configure journaling from your mail system to ensure a copy of every email sent/received is automatically captured in tamper-proof vaults on Vaultastic. Learn more about how to configure journaling.

Step 2: Migrate historical data from live mailboxes to Vaultastic.

Migrate old data from the users’ mailboxes to Vaultastic using the Legacyflo app. Learn more.

Step 3: Reduce Email Storage using a retention/truncation policy on the live mailbox

Now that a copy of all old and new emails is available in Vaultastic, you can now apply a retention policy on the live mailbox to keep it small. E.g., delete mail older than six months to restrict the growth of the live mailboxes.

Remember, it costs more to store the email data on live mailboxes than in an archival store like Vaultastic, which works hard to optimize storage costs across the entire data life cycle.  

Step 4: Access on demand

The users (and supervisors) can now access recent emails via the live mailboxes and all older emails from the Vaultastic Ediscovery console, quickly locating specific pieces of information and documents buried anywhere in the email store. Learn more about the ediscovery app.

Step 5: Further optimize costs by moving infrequently used and aging data to the Open Store

Leverage one more level of storage tiering with Vaultastic’s two stores, viz. the active store for frequently used recent email that is search ready and the Open Store for infrequently used aging data. 

You can configure the automatic movement of aging data from the active to the Open Store. Learn more.

[spacer height=”20px”]

Benefits of storage tiering go beyond long-term data retention

[spacer height=”7px”]

📷[spacer height=”7px”]Uniform Performance[spacer height=”7px”] With a consistently maintained lean live mailbox; your users will experience a consistent mail application performance.

📷 [spacer height=”7px”]Compliance Ready [spacer height=”7px”]A central store of email data enables you to respond to any data access request quickly and accurately.

📷 [spacer height=”7px”]Save 30-45% [spacer height=”7px”]By using tiered storage to maintain a lean live mailbox and leveraging powerful cost optimization strategies of Vaultastic; you optimize up to 60% costs.

📷[spacer height=”7px”]Peace of Mind[spacer height=”7px”] A central cloud repository of your email protected with a robust shared security model ensures that your data is safe, immutable and fully secured against any kind of threats.

Conclusion – storage tiering enables long-term email data retention at 60% reduced costs

Using the storage tiering strategy, you benefit from a lean live mailbox, which ensures a consistent mail system performance and prevents cost escalation on your mail solution regarding plan upgrades or additional storage. 

In addition, the central, immutable repository, now created on Vaultastic, minimizes data-related risks and makes it easy to discover data of any period on-demand.

By including the storage tiering internal to Vaultastic with your strategy, you can further compress costs to achieve up to 60% cost optimization for long-term data retention of email.

[zltech]

Using Your Information Governance Software to Its Full Potential

Exploring how to make the most out of your information governance software What is Information Governance? Improve Sales and Customer Satisfaction Improve Employee Satisfaction Reduce the cost of eDiscovery Conclusion

In the simplest term, information governance is a framework that guides companies in managing their organizational data, but most businesses would agree that information governance is not an easy job. With tasks relating to legal and regulatory compliance, sensitive data management, storing, sharing, archiving, or disposing of data, it is a lot of work for companies of all shapes and sizes. But, if done right, it can act as a bridge to growth for most of us, and understanding information governance is the first step toward finding that bridge.

Information governance in a digital-first, cloud-based corporate ecosystem extends beyond paper and digital records management. It covers guidelines for the entire lifecycle of the information from its creation and acquisition to archiving and defensible deletion. It also refers to risk assessment, compliance, information security, company-wide policies, standards, etc. Most of these are required by regulations such as the General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA compliance), and more industry-specific requirements like HIPAA, PCI-DSS, GLBA, and financial services compliance.

Considering all of that, one might think the IG software is already doing a lot, but there’s more it can do.

Customers-facing employees must be able to locate all pertinent information about a client and their details promptly. Such data is often kept on different platforms without the teams knowing its existence.

An IG software helps companies set the standard for how all information is organized, categorized, and accessed. With that, employees can promptly gather complete and correct information about the customers and use it to address the customers’ needs, resulting in more sales and customer satisfaction.

When so much information is available, it might be challenging to find what you need – or even realize it exists. According to a recent poll, firms in the United States lose $900 million in productivity each year due to information overload. 

Information governance solutions help reduce redundant, obsolete, and trivial (ROT) files, reducing the overall data that needs to be worked with. Therefore, it helps reduce the workload for the employees and helps bring in employee satisfaction to some extent. 

With ROT data still in the company servers, the discovery team must evaluate every piece of data that might be useful, which can take months, even years, and cost millions of dollars.

By allowing only appropriate information to be easily recognized and accessible, information governance solutions enable quick and thorough e-Discovery that a team of attorneys might take months to complete.

Advanced information governance can bring a lot more to the table than just a tool for managing information. Most large enterprises benefit from the information management and analytics from IG tools. However, the key is to use advanced IG solutions that cater to all your needs.

[tinykryptonitestarlight]

Task 2 XBLAW 7319 ST10120728

An examination of the merits and challenges of incorporating e-discovery into South African Civil Procedure. 

What is E-discovery and why is it relevant to legal practice and civil procedure?

eDiscovery is the procedure of finding, safeguarding, developing and searching electronic information in legal discovery.[2] The Civil Proceedings Evidence Act 25 of 1965 (CPEA) lists the requirements for the production of documents to lessen the issues in question and to ensure that the court’s time is not wasted.[3] 

How does it work?

The use of electronic data in court proceedings is authorised in section 11(1) of the Electronic Communications and Transactions Act 25 of 2002 which states that information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message.[4] The process followed for e-discovery is information regulation, identification, preservation and collection, processing, review and analysis, production and presentation at trial.[5] 

Should e-discovery be incorporated into the rules of civil procedure?

Most data is now stored and transmitted electronically therefore the legislature should cater to the changing environment to make it easier for every legal person to present credible evidence in a juristic setting. In addition, by using electronic means to store and transmit data, important information and documents can be stored and located much easier with a much lower rate of loss.

What are some of the challenges facing e-discovery in South Africa?

With regards to safeguarding, council has an obligation to protect any electronic documents that could be pertinent or presumed to be a prerequisite for later litigation.[6] This can be quite a costly exercise that is charged on billable hours and hosting fees per gigabyte.[7] However, if these files are stored locally and backed up onto a secondary drive that is also password protected off premises, these storage costs can be reduced significantly in comparison to the costs of printing thousands of pages of information and then making copies thereof for submission.[8] 

With regards to format, PDF seems to be the generally accepted format for files as they can be password protected to ensure they reach only their intended recipient/s and that the file can never be changed in transit in a manner that would physically affect the contents of the file in question.[9] 

With regards to the number of files, the amount of effort needed would be the same as with physical documents.[10] The real difference comes in the fact that digital documents would need to be verified as true and correct before they can be used in legal proceedings.[11]

What are some of the global trends regarding the adoption of e-discovery and is South Africa keeping up or lagging behind?

In the United States of America, electronically kept legal papers are components of discovery asks and replies.[12] All electronic information is regulated by the doctrine of sensible obtainability.[13] The court still has final choice to order that specific documents be revealed in any manner the court wants.[14] There are rules regarding penalties to be imposed if stratagem and court process are not followed regarding the discovery of electronic documents.[15] 

From the above, it would appear that South Africa is lagging behind regarding the adoption of e-discovery processes as no specific rules are laid down regarding e-discovery procedure.[16] Electronic documents are, however, regulated in civil procedure through the Rules of the High Court and the Rules of the Magistrate’s Court.[17] 

How will the inclusion of e-technologies in legal practice impact on the practitioner’s duty of care, skill and attention to his client?

Regarding the practitioner’s duty of care, legal practitioner’s will need to be more sceptical of electronic documents and where they came from in order to ascertain if those documents can be used and are true and correct. 

Regarding skill, it is a lot easier to search through electronic documents than it is to search through physical documents. However, legal practitioner’s would be required to possess basic computer skills as this would be needed to run these searches. 

Research can be done on expert witnesses in order to verify their qualifications electronically.[18] Legal practitioners who are working on the same case can share important files securely through services such as Drop Box.[19] 

With regards to attention to the client, electronic devices and services ensure that even if a legal practitioner and a client cannot physically meet in person, they could still virtually meet through services such as Skype.[20]

Do you believe that the introduction to e-technologies in legal practice generally could impact the section 14 rights of litigants?

Section 14 of the Constitution of the Republic of South Africa, 1996 deals with the right to privacy. [21] As such, the section 14 rights of litigants would be affected substantially as all communications related to the matter that are not privileged nor prejudicial would have to be disclosed as part of discovery thereby impacting the litigant’s right to privacy.[22]

(Words: 809).

____________________

[1] Hughes, K. Stander, A. and Hooper, V. eDiscovery in South Africa and the challenges it faces (2015) Researchgate DOI: 10.1109/InfoSec.2015.7435507 researchgate.net/publication/284173757 (accessed 28 April 2022).

[2] Hughes, K. Stander, A. and Hooper, V. eDiscovery in South Africa and the challenges it faces (2015) Researchgate DOI: 10.1109/InfoSec.2015.7435507 researchgate.net/publication/284173757 (accessed 28 April 2022).

[3] Hughes, K. Stander, A. and Hooper, V. eDiscovery in South Africa and the challenges it faces (2015) Researchgate DOI: 10.1109/InfoSec.2015.7435507 researchgate.net/publication/284173757 (accessed 28 April 2022); Myburgh, A. E-discovery in South African law (2017) Academia academia.edu/download/53257166/E-Discovery_in_SA.pdf (accessed 28 April 2022).

[4] Section 11(1) of the Electronic Communications and Transactions Act 25 of 2002.

[5] Hughes, K. Stander, A. and Hooper, V. eDiscovery in South Africa and the challenges it faces (2015) Researchgate DOI: 10.1109/InfoSec.2015.7435507 researchgate.net/publication/284173757 (accessed 28 April 2022).

[6] Hughes, K. Stander, A. and Hooper, V. eDiscovery in South Africa and the challenges it faces (2015) Researchgate DOI: 10.1109/InfoSec.2015.7435507 researchgate.net/publication/284173757 (accessed 28 April 2022).

[7] Crecelius, J.D New technology and its impact on the practice of law (11 April 2022) Expert Institute expertinstitute.com/resources/insights/new-technology-and-its-impact-on-the-practice-of-law (accessed 15 May 2022); CloudNine Managing the unpredictability of eDiscovery costs (2022) eDiscovery daily blog cloudnine.com/ediscoverydaily/managing-unpredictability-of-ediscovery-costs-with-cloudnine (accessed 16 May 2022).

[8] Crecelius, J.D New technology and its impact on the practice of law (11 April 2022) Expert Institute expertinstitute.com/resources/insights/new-technology-and-its-impact-on-the-practice-of-law (accessed 15 May 2022).

[9] Crecelius, J.D New technology and its impact on the practice of law (11 April 2022) Expert Institute expertinstitute.com/resources/insights/new-technology-and-its-impact-on-the-practice-of-law (accessed 15 May 2022).

[10] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[11] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[12] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[13] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[14] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[15] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[16] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[17] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

[18] Crecelius, J.D New technology and its impact on the practice of law (11 April 2022) Expert Institute expertinstitute.com/resources/insights/new-technology-and-its-impact-on-the-practice-of-law (accessed 15 May 2022).

[19] Crecelius, J.D New technology and its impact on the practice of law (11 April 2022) Expert Institute expertinstitute.com/resources/insights/new-technology-and-its-impact-on-the-practice-of-law (accessed 15 May 2022).

[20] Crecelius, J.D New technology and its impact on the practice of law (11 April 2022) Expert Institute expertinstitute.com/resources/insights/new-technology-and-its-impact-on-the-practice-of-law (accessed 15 May 2022).

[21] Section 14 of the Constitution of the Republic of South Africa, 1996.

[22] Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

Bibliography 

Legislation

Civil Proceedings Evidence Act 25 of 1965 (CPEA).

Electronic Communications and Transactions Act 25 of 2002 (ECTA). 

Cases

N/A

Loose-leaf editions

N/A

Articles

CloudNine Managing the unpredictability of eDiscovery costs (2022) eDiscovery daily blog cloudnine.com/ediscoverydaily/managing-unpredictability-of-ediscovery-costs-with-cloudnine (accessed 16 May 2022).

Books

N/A

Chapters in books and journals

Cassim, F. The use of electronic discovery and cloud-computing technology by lawyers in practice: lessons from abroad (2017) Journal for judicial science 42(1): 19-40 DOI: 10.18820/24150517/JJS42.v1.2 (accessed 28 April 2022).

Hughes, K. Stander, A. and Hooper, V. eDiscovery in South Africa and the challenges it faces (2015) Researchgate DOI: 10.1109/InfoSec.2015.7435507 researchgate.net/publication/284173757 (accessed 28 April 2022). 

Myburgh, A. E-discovery in South African law (2017) Academia academia.edu/download/53257166/E-Discovery_in_SA.pdf (accessed 28 April 2022). 

Theses

N/A

Internet sources

1. Crecelius, J.D New technology and its impact on the practice of law (11 April 2022) Expert Institute expertinstitute.com/resources/insights/new-technology-and-its-impact-on-the-practice-of-law (accessed 15 May 2022).

[hudsonmckenzie]

Corporate law – Preparing for technological evolution

Unquestionably, technology has transformed the business world, quickly changing and expanding in every field imaginable. When it comes to choosing the best services available in the industry, technological innovation is no exception. This is not surprising given the size and scope of the market—the second largest professional service industry in the U.S. With some of the biggest law firms hiring more than 150,000 legal experts, this domain has the means and the need for advanced tech to help address the various challenges encountering today’s legal professionals.

Even in the context of the latest news about a burgeoning M&A market and jump in associate bonuses, the legal scenario has modified significantly over the past few years and a new reality is taking shape. More and more, clients are refusing to pay for junior associate work, outsourcing low-level work, and seeking alternatives to the billable hour. Increasing cost-cutting mandates from clients have made finding value and efficiency high priorities. In-house legal sections are encountering increasing pressure to both enhance the efficiency of their own businesses while managing a more expansive workload and also reducing the amount they spend in legal fees on outside counsel. This demand to do more with less is, in turn, passed on to law firms, who in a buyer’s market, must come up with ways to distinguish themselves and provide more value for clients to defend their charges. This persistent drive toward cost-effectiveness has made it essential for both law firms and in-house legal sections to approvea technology that will make corporate lawyer in London more effective.

Much of the emphasis of innovation to date has been seen on the litigation side. For example, eDiscovery tools and software have enabled significant time and cost savings when it comes to reviewing emails and other digital records.

Unfortunately, the level of innovation in legal tech has not been properly distributed, chiefly when it comes to transactional task. In the $100 billion corporate law industry, companies threw an anticipated $4.2 billion each year on legal charges in mergers and acquisitions only.

Why so irregular? One of the causes that can be seen are technology advance with eDiscovery versus due assiduousness is that litigators must need to go through enormous databases of email, coding responsive or non-responsive paperwork, which results into a binary analysis. Artificial intelligence tools can be considered based on how they have coded a subset of documents and then use that learning to the est of the documents. However, in the context of corporate due diligence, complex provisions that wind their way throughout a contract must be fetched and abridged for a vast number of extremely diverse documents. As an outcome, it is necessary that the machine learning technology used in this scenario be more particular and nuanced to be able to determine different options in which ideas can be expressed and yield them with a granular emphasis.

One of the most important lessons learned from eDiscovery is how intensely software can enhance speed and efficiency, mostly with respect to low-level work. Before using some of the eDiscovery tools available these days, document review was amazing time intensive. But technological advancement increased efficacy, helping legal firm get more reviews rapidly, with ultimate time and cost savings passed on to the clients. Accelerated document review is also an obliging differentiator firms can use to improve market themselves.

[shielfc]

Shield - Best E-Comms Surveillance Solution in USA

Shield has been recognised for the Best e-Comms Surveillance Solution category in the RegTech Insight Awards USA list for 2022, which recognises established solution providers and innovators. The RegTech Insight Awards recognise startups that help financial services companies respond more effectively to changing and complicated regulatory requirements.

Shield's Proactive Surveillance capabilities assist financial firms in navigating and responding to a variety of regulatory measures, such as market abuse, employee misconduct, privacy breaches, and social media monitoring, as well as out-of-the-box behavioural detection modules, AI-infused eDiscovery capabilities, and advanced correlating analytics capabilities.

Iftach Drori, Shield's Head of Marketing and Investor Relations, stated, "We're thrilled to be acknowledged by such a renowned organisation as the RegTech Insight Awards, alongside some of the world's most creative fintech businesses." "Our advanced end-to-end communications platform's influence on financial organisations, as well as our capacity to promote the needs for more visualised, quicker, and easier compliance, has been further validated by this selection."

The use of communication channels continues to rise in this new work-from-anywhere environment. This increase allows for unrestricted discourse and a significant gap in communication regulation. Shield's nano-algorithmic approach is reinventing how businesses manage risks, improve operational efficiency, reduce compliance costs, and detect the undetectable by changing how they mitigate risks, improve operational efficiency, decrease compliance costs, and detect the undetectable.

The RegTech Insight Award advisory board, which is made up of financial sector professionals and leaders, named Shield as one of the finest solutions for regulatory compliance tools for voice and mobile message channels.

"We are ecstatic that Shield was named the Best e-Comms Surveillance Solution in this extremely competitive category by our RegTech Insight community of over 35,000 senior regtech experts. "We congratulate Shield on their accomplishment," stated Angela Wilbraham, CEO of A-Team Group, which sponsors the annual RegTech Insight Awards USA.

[rtload906]

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Two-Thirds of Health Care Organizations Lack Information Governance Strategy

Two-thirds of the responding health care professionals say their organizations do not have a comprehensive information governance (IG) strategy, but having one in place is a critical component in advancing patient care, improving population health and reducing costs, according to AHIMA, who cosponsored a survey on IG with Cohasset Associates.

An x86-64 host computer with Windows 10® or Ubuntu. (16.04 or 18.04) for the Intel® Distribution of OpenVINO™ toolkit. Intel® Neural Compute Stick 2 (Intel® NCS 2). Buy Now; An internet connection to download and install the Intel® Distribution of OpenVINO™ toolkit. This section provides configuration information on a purchased product and makes it possible to look up and download available drivers. In the field below, please type a serial number (including a hyphen), then click the 'Search' button. If for some reason the drivers are not included, please forward them to the online ticket form. NCS Driver Download for windows. NCS/INPA Download: Access to the direct download of NCS-Expert/ INPA and bonus coding files can be found here. Full.PDF Installation Walkthrough Guide We have created a very detailed walkthrough guide on how to install, configure and get NCS-Expert running can be found here (Windows 7) and here (Windows 10). Download Adobe Acrobat Reader. We use JavaScript to enhance your experience. It is not essential, but it helps us present the site to you in a more user-friendly way. A PC(perferably a laptop) running at least Windows XP SP2.Windows 7 is recommended.Many of the underlying programs used by BMW Standard Tools were designed to run on legacy (very old) systems.For this reason,setting-up a dedicated environment using virtualization software is recommended.However,this is an advanced topic and wil not be covered.

In a first-of-its-kind, benchmarking survey of comprehensive IG practices in health care, AHIMA found that 95% of the more than 1,000 respondents said improving the quality and safety of patient care is a key driver for implementing IG.

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Business Drivers One of the biggest barriers to addressing. Gravity FHIR IG Development. IG Ballot Reconciliation. Reference Implementation Update.

I ig development projects financed,-ith the aid of Israel Bonds ere-te promotion of such private invest-ments in Israel. In recent years, encouraged by the growing involvement of U.S. Firms in Israel and the widespread support which its Israel Bond pro-gram has received from American Jewry and the American public generally, the government of Is.

A new white paper based on the survey provides an understanding of the state of IG in health care and a roadmap for establishing steps organizations should take to govern their information. Complete results and analysis can be found in the Cohasset Associates/AHIMA 2014 Benchmarking White Paper on Information Governance In Healthcare: A Call to Adopt Information Governance Practices.

“Information governance is a strategic imperative for all organizations within the health care ecosystem,” says AHIMA Chief Operating Officer and Executive Vice President Deborah Green, RHIA, MBA. “Improved quality and patient safety, cost control, care delivery redesign, and responding to regulatory changes are top goals for health care organizations, and all are dependent on trustworthy information.”

The results indicate that there are pockets of strong IG efforts in areas such as privacy and security, but not organizationwide.

Additional findings of the survey include the following:

IG programs are less prevalent and less mature in health care organizations than is warranted, given the importance of health information.

The IG framework and its foundational components call for strengthening and expansion within organizations.

Information lifecycle management practices related to core functions require improvement to ensure the trustworthiness of the information.

Privacy policy and practices are the most developed in health care followed closely by information security policy and practices.

Ninety-seven percent of respondents said essential policies for maintaining private and secure protected personal health information are in place in their organizations. However, only 81% report that business associate agreements are in force and routinely audited.

To prepare for information governance, AHIMA recommends programs that are cross-functional with senior level support. An organization’s governance focus should not be on clinical information alone, but on non-clinical, business and operations information as well.

“I encourage my colleagues in the C-suite to make a comprehensive information governance strategy an organizational priority,” says AHIMA CEO Lynne Thomas Gordon, MBA, RHIA, FACHE, CAE, FAHIMA. “It’s easy to think it can be put on hold or maintained in one department while executives deal with other challenges, but this is a mistake. Developing a strategy should be a collaborative effort and is essential to realizing the benefits of governance.”

To achieve the full benefits of IG, AHIMA recommends the following be addressed:

• an accountability framework and decision rights to ensure the effective use of information, enterprisewide;

• defined processes, skills, and tools to manage information throughout its entire lifecycle; and

• standards, rules, and guidelines for functioning in an increasingly electronic environment.

In addition to publishing a white paper on the survey results, AHIMA is convening health care stakeholders to develop a framework for IG in health care, has established an expert advisory group to review and provide input into IG development efforts, and is developing resources and guidelines to aid in operationalizing IG in health care.

The survey of AHIMA and non-AHIMA members targeted clinical and nonclinical executives, officers, directors, and managers in provider and nonprovider organizations in the health care industry. The survey received more than 1,000 responses between March and April 2014 and was conducted with Cohasset Associates and underwriten in part by Iron Mountain.

Source: AHIMA

Cyberattacks, data breach, privacy of customers, citizens and employees’ personal information, together with the opportunities to create value from data and information held by organisations – are major drivers for organisations to implement a strategic approach to the governance of data and information as part of good corporate governance. Information Governance provides an overarching strategic framework for organisations seeking to control and secure information throughout their organisation, which both maximises the value of information and minimises the costs and risks of holding it.

Twelve months ago, the Director-General of the Australian National Archives called for Chief Information Governance Officer positions to be created to lead the digital transformation in Federal government agencies. This article looks at different Information Governance leadership models being used in corporate and government organisations together with the views of Information Governance leaders in those organisations.

Who is responsible for data and information?

Typically, an organisation’s data and information is managed by various ‘owners’ and will vary according to the industry and organisational structure. In general, responsibility for data and information includes:

Data – Chief Data Officer

Data Analytics – Chief Data Scientist

Customer data – Chief Digital Officer or Chief Marketing Officer

eDiscovery – eDiscovery Counsel or General Counsel

Privacy – Chief Privacy Officer

Information Security – Chief Information Security Officer or Chief Information Officer

Records & Information Management – Records and Information Manager

As the above lists highlights, the digital transformation over the past decade has created new roles and titles responding to the exponential growth of data to manage the risks and opportunities arising from data and information held by organisations. A key challenge for the continuing digital transformation and growth in data is for organisations to have internal organisational structures that align with organisational goals and objectives. In the context of responsibility for data and information, organisations require a cohesive governance structure to ensure data and information are effectively controlled and optimised to enable organisational objectives to be met. This is achieved through a formal Information Governance framework and effective Information Governance leadership.

The benefits of an Information Governance framework

A sound Information Governance framework is the critical foundation that enables organisations to govern and properly manage the information they hold. The benefits of a holistic approach include:

senior-executive-level engagement and decision making on important strategic opportunities and risk mitigation issues concerning organisational information;

increasing revenue and profits through the use of data analytics to develop or improve products or services, and/or through developing strategies to improve efficiencies and reduce costs;

improved management of data, with more efficient retrieval of retained data;

defensible destruction of redundant, outdated and trivial data/information (ROT), with an audit trail that can be relied upon in litigation or regulatory investigation;

improved selection and return on investment (ROI) on new technology, appropriate to the organisation’s legal, compliance and business needs;

comprehensive and aligned policies, processes and response plans – including comprehensive ICT security and privacy frameworks and breach response plans; and

reduced costs and increased efficiencies arising from the implementation of an aligned strategy and policies, in contrast to the inefficiencies of the traditional fragmented siloed approach.

Information Governance leadership

Information Governance leadership is about leading and collaborating with professionals from different disciplines across the ‘information silos’ to align activities and technologies to maximise the value of information while minimising the risks and costs of holding it. With the exponential growth in data and the risks and opportunities of data and information held within an organisation, effective Information Governance is a key factor in delivering strong Information Governance, which is part of good Corporate Governance. The diagram below illustrates the typical areas within an organisation where data and information are managed and governed by policies, procedures, technology and people.

Types of Information Governance leadership

The type of Information Governance leadership will vary between organisations, and are likely to depend on its strategic priorities, size, resources, and the current position of information management within it. Information Governance leadership types include: IG Steering Committee, C-level executive who also takes on responsibility of Information Governance in their portfolio of responsibilities; or a Chief Information Governance Officer

IG Steering committee

The IG Steering Committee is a committee made up of the relevant C-level and other executives and managers responsible for different areas of information and data management.

Ideally, the IG Steering Committee should be chaired by a C-level executive so that there is clear senior executive level support and direction. The direction and overarching strategy for Information Governance should be approved by the Board and CEO, who have ultimate responsibility for the governance of data and information. The Committee is responsible for setting priorities, such as deciding on pilot projects, carrying out reviews of implemented projects etc.

The position titles of the members of the Steering Committee may vary between organisations and will depend on factors such as the size and structure of the organisation and the stage of IG development within the organisation.

The composition of the IG Steering Committee may include the following – General Counsel (GC), Chief Information Security Officer (CISO), Chief Privacy Officer (CPO), Chief Data Officer (CDO), Chief Marketing Officer (CMO), Chief Data Scientist (CDS), Records & Information Manager (RIM) and others appropriate to the needs and priorities of the organisation.

The IG Steering Committee should have a suitable Chair to ensure the Committee:

is collaborative to ensure that those members of the committee lead their respective areas to break down information silos with a culture of information and data collaboration;

is well-structured, meets regularly, and has a clear agenda that is implemented and achieved.

National Archives of Australia

The National Archives has an Information Governance Steering Committee (IGC) which has been assigned by the Director-General to the Archives’ peak governance body, the Executive Board. The terms of reference set out that, ‘(t)he Executive Board added formal responsibility for Information Governance oversight to its role in October 2015 to ensure that the Digital Continuity 2020 Policy is implemented within the Archives and targets for agencies are met’. The National Archives has clear terms of reference for its IGC with defined functions, which provide a useful point of reference for organisations in the process of establishing a Steering Committee.

Steering Committee functions

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The role of the Information Governance Steering Committee is to:

monitor effectiveness of the information governance framework, and all information strategy, policy and architecture documents

ensure coordination of the information governance reporting and external information audits and reviews

identify who is responsible within the organisation for information assets identified in audit and review processes

develop an information management workforce plan with support from the People Management and Development section

monitor information infrastructure according to the organisation’s business information needs

coordinate internal information reviews to identify information assets and their value, manage risk and compliance, and improve business processes

ensure that the organisation’s information is managed for its entire life in accordance with risk, including risks associated with security, access, privacy, continuity, and cost

ensure coordination of information standards implementation, for example, business systems functionality, metadata and interoperability capabilities

C-level executive who is also responsible for IG

This is a current C-level executive, such as a CEO, COO, GC, CPO or CISO who also is responsible for Information Governance. The way in which the organisation structures Information Governance leadership will be determined by its:

strategic priorities, size, structure, resources; and

the stage of Information Governance development within the organisation – that is, whether it is nascent, developing or established.

This model requires the C-level executive to have appropriate leadership skills to work across organisational silos together with sufficient cross-functional expertise to enable them to be an effective Information Governance leader. Determining who will be appropriate to be the overall Information Governance leader will vary from organisation to organisation and will depend on the requirements of the organisation, breadth of cross-functional experience and leadership skills that are determined to be key at the time of the appointment. Types of approaches may include:

CISO with experience in responding to cyberattacks and data breaches, and the identification, retrieval and production of electronic documents and data in litigation and regulatory inquiries. This would be a CISO who is experienced in working in cross-functional teams, including the privacy and legal teams, and understands the demands and requirements involved regulatory responses;

CPO with significant data breach responses and information security/cybersecurity experience. This would be a CPO who works closely with the CISO and IT team, and/or a CPO who works closely with Data Analytic team(s) and/or Product Development team(s);

GC who is experienced in eDiscovery, data breach and broadly understands data analytic technologies and the important opportunities they present to the organisation.

A key issue for the organisation in adding Information Governance leadership responsibilities to the existing responsibilities of the C-level executive is whether they are able to adequately lead Information Governance as well as effectively discharge the responsibilities of their current position. This will depend on whether the additional responsibilities will be supported by the necessary resourcing to support their CIGO role and their current position, and whether they are able to delegate, as appropriate, current responsibilities to ensure they can dedicate sufficient time to their Information Governance responsibilities.

Mastercard

Mastercard implemented an Information Governance program beginning in 2013 to assist with the digital transformation of the organisation at that time. Ms JoAnn Stonier leads the Information Governance and Privacy program for Mastercard on a worldwide basis.

Ms Stonier explains that, ‘MasterCard continually works on building information governance into all of its data and product development efforts. As Mastercards’s business uses of data have changed, our information governance and data privacy team has gone from a team of me to a team of over 40 individuals who are imbedded with our business partners in order to improve our data practices every day. Along the way, we’ve evolved from gate keeping function to one that is more integrated with our business teams which allows us to build and improve our data strategy and develop solutions that enable the growth and advancement of our business.’

Ms Stonier sees the role of Chief Information Governance officer as, ‘leading strategy, building infrastructure, working with regulators, building partnerships, and defining best practices’.

Transpower

Transpower is the owner and operator of New Zealand’s national electricity transmission grid. It also operates the country’s wholesale electricity market. As a critical infrastructure provider, Transpower is part of New Zealand’s earthquake disaster response strategy, requiring a strong focus on accurate real-time asset information for business resilience and the continuing safety of their staff and service providers.

Information Governance is led by the Chief Executive who sets the expectations and behaviours for everyone in the business by acknowledging the essential role data and information plays in underpinning every decision in the business. Transpower business relies heavily on robust records management. Ms Carol Feuerriegel, Enterprise Information Manager explains that, ‘long timeframes (5 to 25 years) for forecasting, planning and constructing transmission electricity infrastructure, combined with rapidly emerging alternative power sources, means Transpower needs to leverage reliable historical data and sophisticated predictive capabilities to make strategic investment decisions for the future’.

Ms Feuerriegel says, ‘ensuring good information and data quality is achieved through Transpower’s Information Governance methodology, includes an internally-consistent information hierarchy, driven from the top-down which identifies accountabilities and decision rights and prioritises the key data elements, core documents, and critical systems required to run the business. This integrated framework of enterprise information assets and accountabilities and the IG methodology becomes the touchstone for all information and data – related decisions.’

Reliability, safety, transparency and auditability are the key drivers in Transpower’s enterprise Information Governance strategy. Ms Feuerriegel explains that, ‘developing effective mechanisms for ensuring authoritative information is available in the right format to everyone who needs it when they need it, requires active participation by every level in the business from the Chief Executive to our people in the field. Given the industry we operate in, our people must be able to trust the information they have available in order to operate safely and efficiently.’

University of Western Australia

Mr Andy Lavender formerly of oil and gas major Chevron and now Associate Director, for Information Governance and Reporting at The University of Western Australia believes the institution has demonstrated a sharper focus by advancing information governance through its Office of Strategy, Planning and Performance. He says, ‘this transformation has provided an opportunity to secure sponsorship at the executive management level.

Mr Lavender is convinced, ‘an ambitious and effective executive sponsor makes all the difference when delivering cross-organisation and organisation-wide programme of works, such as those involving information governance initiatives.’

Designated Chief Information Governance Officer (CIGO)

This is the creation of a new C-level role – the Chief Information Governance Officer. The Information Governance Initiative (IGI), a US IG think-tank describes the CIGO’s role as ‘to balance the stakeholder interests from each facet of IG and develop the right operational model for the organization.’(1)

The Director-General of the National Archives of Australia has called for Federal government agencies to establish a CIGO role to bring people, technology and processes together. Mr David Fricker, Director- General has said,

‘Under its Digital Continuity 2020 policy, the National Archives recognises the role of chief information governance officer as ‘best practice’ for agencies committed to professional information management. As well as leading information governance across an agency, the role is critical for digital innovation and capability, and for championing the importance of effective information management.

An enterprise-wide view will break down silos to create new opportunities to deliver better business outcomes.’

The diagram below illustrates the leadership and co-ordination role of the CIGO to ensure that organisational goals and objectives are met by aligning the areas responsible for data and information throughout the organisation.

What is the CIGO role?

The CIGO is responsible for ensuring that information facets and the various departments responsible for data and information are aligned and working efficiently and effectively to minimise costs and risks and optimising value from information held throughout the organisation.

The National Archives divide the CIGO’s responsibilities into 4 areas – strategic, technical, promotion and engagement. The following table sets out CIGO’s responsibilities – this of course will vary from organisation to organisation and will be impacted by strategic priorities, size, structure and resources.

While the role of the CIGO needs to fit the needs of the organisation, the ability of the CIGO to be an effective leader to work with leaders and those responsible for data and information across the organisation will be key to the success of Information Governance. The CIGO will also need to have the confidence of the Board of Directors and the CEO so that resources and priorities will enable an Information Governance program to be effectively implemented that meets:

legal and regulatory requirements;

organisational standards and values including ethical and socially responsible standards and/or values of the organisation;

overall organisational strategic business goals and objectives.

In conclusion

There are different types of Information Governance leadership models – the key is to select the model that is best suited to your organisation’s needs to enable strategic and cost-effective governance of information and data as well achieve overall organisational objectives.

A well-executed Information Governance framework and program, with appropriate leadership should deliver effective security and control of data and information by minimising risks and reducing costs of holding information and maximising the value of information held by the organisation.

Ig-development Driver Test

Effective Information Governance leadership will enable the organisation to deliver continual strategic and proactive governance as digital disruption impacts the organisation and digital transformation continues.

(1) Information Governance Initiative, Annual Report 2014, p28.

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Susan Bennett LLM(Hons), MBA

Ig-development Driver Updater

Principal of Sibenco Legal & Advisory and co-founder of Information Governance ANZ

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Sustainability must be a primary business KPI. Three practical approaches to make it a reality.

California wild fires 2020.   Source: The Desert Sun.

By Moataz Rashad

Feb 17, 2021

         Last year’s California wildfires and air quality issues piled on top of a pandemic lockdown have made life comparable to a hub on an inhospitable remote star.

Earlier this year in January, NASA’s Goddard Institute of Space Studies released a study  back-testing older climate projection models and confirmed their accuracy. More recent models are even more sophisticated and higher accuracy. We’ve turned a beautiful planet into an ailing mess. With President Biden’s decisions on his Day 1 to rejoin the Paris Agreement on climate change, and appointing Mr Kerry as Climate Envoy, we’re finally on a good path.

It is high time that the manufacturing and construction sectors take sustainability seriously and heed that policy guidance. AI can facilitate that in an automated seamless way.

Many manufacturers produce annual sustainability reports. They often read like everything is great, and you’d think that if the top 50 companies in every manufacturing sector were as mindful of sustainability as these reports would make it seem, then we shouldn’t really have any environmental problems.

The truth, of course, is that the manufacturing supply chain is amongst the top 5 polluters in every country across the globe.  Every major manufacturer has a lot of room to improve.

The most conscientious manufacturers have recently been addressing the issue seriously and exploring how AI/ML can play a pivotal role in effectively optimizing their sustainability in every stage of their supply chain.

Some have even reached out to us specifically for advice on AI for architecting approaches for optimizing sustainability in procurement or logistics, which is certainly a very healthy and encouraging sign.

It’s tempting to reduce sustainability to recycling, using greener materials, diminishing  your energy footprint, and so on. And while these individual steps certainly help, the problem is much broader than that.

In this article, we’ll touch upon three top level proposals that every Chief Supply Chain Officer or COO ought to consider in their supply chain sustainability plans for 2021 and beyond.

Sustainability in Procurement

It goes without saying that you may have perfect sustainability practices in your own manufacturing operations and internal processes, but if the components you buy are from dubious suppliers, your overall product sustainability score will suffer and your product’s environmental footprint will be negative. Think of it as the multiplication of these individual component scores: all it takes is for one key component to have a sustainability score of 0. Therefore, it is important that you investigate every supplier you onboard for their own sustainability practices. It simply can’t be based on the stale, static questionnaire forms that many companies still use today.

Some industries, such as automotive, have strict legislative sustainability compliance requirements, which makes supplier review and qualification a bit more manageable since every supplier has to have their compliance reports. But many industry sectors don’t and it is certainly true that compliance reports can be gamed!

There are three AI/ML modules that can help address sustainability in procurement. You can start with any one of these, and then phase in the rest. However, ultimately, you will need all three for an end to end procurement sustainability optimization.

Build your own sustainability scoring model for your suppliers. The model can use those supplier questionnaires as an input, but they are just one low-trust input.

Almost all procurement departments we work with rank suppliers in quality tiers (A, B, C)  that are largely based on yield, OTIF fill rate, and capacity. Sustainability should be a separate quality tier; the model will treat it as such and it will have its own feature weight.

Build an AI decision model that would allocate POs to suppliers to optimize the Bill of Materials for an overall KPI, where overall sustainability is one of those highly weighted KPIs. Of course, Costand Delivery Date are typically KPIs as well. Thus, you have a Reward that is a weighted formula such as  R = w1* SustainabilityScore + w2* Cost + w3*DeliveryDate

Build a Supplier Risk decision model that can recommend actions as follows:

Approve a supplier for a given country/region

Upgrade/downgrade the tier-rank of a supplier 

Increase/decrease the risk score of a given supplier

Initiate an eDiscovery process pertaining to a specific risk item (material-id)

Initiate an investigation into a supplier’s claim/statement in questionnaire

Flag a supplier for an onsite investigation

Disqualify a supplier

Warren Buffet has famously said “It takes 20 years to build a reputation, and 5 minutes to ruin it. If you think about that, you’ll do things differently. “ It could even be 5 minutes by one of your suppliers that cut corners and ended up ruining your product’s sustainability score, not your own team or process.

Sustainability in Manufacturing

The vast majority of manufacturers have their own plants but also augment them with contract manufacturers. Therein lies a major problem for your product’s environmental impact. You do have full control over your own plant operations, the eco-friendly materials you procure, their treatment, storage and disposal of toxic waste, and the energy usage in the plant, to name a few.

For your own factories, you can build a decision model that recommends actions that directly impact your Triple Net Zero goal (Energy, Water, and Waste). However, it’s very hard to have full visibility into contract manufacturers’ practices and compliance, and where they stand on each one of these sub-goals.

Some of the largest manufacturers currently do surprise inspection visits, which are a definite part of the solution, but are not sufficient on their own. In fact, in healthcare, the FDA is known for frequently making these surprise visits to international drug manufacturing operations, which has been quite effective in improving generic drug quality and compliance.

For a coveted tier1 customer, CMs can also be required to provide video feeds of operations on a recurring basis, and those feeds can be analyzed for credence and potential violations.

Once this data is available, it can be fed into an AI decision model that can then recommend the build-order-quantity and target dates per CM in order to optimize for safety stock, time-to-market, and the sustainability score of the final product.

Sustainability in Logistics

Supply chains have two logistics links -- the first is procuring raw materials and components and getting them shipped to the factories, and the second is shipping the finished product to distributors and customers. Therefore, optimizing your logistics network is  crucial to your overall sustainability score.

It’s a given that shipping and freight forwarding has a high environmental impact, so you’ve got to look at your carrier and distribution networks closely and build a model that makes these carrier, route/lane, and shipping date decisions intelligently to optimize for MABD (Must Arrive By Date) along with the sustainability score. Making these decisions with high efficacy in a COVID shocked environment such as 2020 has proved challenging even for the most successful manufacturers and 3PLs. AI can play a key role in building upon and improving these human decisions. 

Conclusions

Despite  good intentions, a patch work of sustainability report here, and a line item in a questionnaire there haven’t and can’t be expected to deliver quantifiable sustainability improvement results. If we’re serious about optimizing sustainability in the  manufacturing sector, we think the viable solution is to make it a highly weighted business KPI for the supply chain AI models. These decision models will take care of the actions and the KPI Reward outcomes, and will continue to improve and optimize that KPI with usage. That’s the path to a green future!

Reference:

Sustainable Global Value Chains https://link.springer.com/book/10.1007%2F978-3-319-14877-9

How to measure a company’s real impact https://hbr.org/2020/09/how-to-measure-a-companys-real-impact

A comprehensive framework for automotive sustainability assessment

https://www.sciencedirect.com/science/article/pii/S0959652616309155

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Legal Tech: AI set to change the face of legal industry

Artificial intelligence (AI), the simulation of human intelligence in machines, is changing the face of the legal industry. Law firms globally are apprehensive about what lies ahead for the industry but changes are already in motion and there is no escape, says Dr Anton Ravindran.

Anton is the CEO of SmartLaw, a start-up based in Singapore that utilises AI to assist lawyers in their work. Its online services help lawyers scan through thousands of pages of documents and answer their law-related questions in seconds. It also helps them predict sentencing outcomes, and extract legal precedents and verdicts almost instantly for criminal offence, contested divorce and medical negligence.

“It means legal work that requires an army of legal associates and hundreds of hours of study can now be done in seconds,” Anton points out.

Such a thing may sound impossible, but it isn’t, he says. “Lawyers who are sceptical about it can try out our system. We can demonstrate how quickly it can scan documents and answer their questions. All these services are already there; they are no longer conceptual.”

SmartLaw may be the first start-up in Southeast Asia to provide such solutions to the legal industry. But there are several other frontrunners globally, especially in the US.

For instance, Ross Intelligence helps law firms conduct legal research by leveraging IBM’s Watson, a question-answering system that can understand natural language. A testimony posted on its website claims that its solution helped a legal firm save 75% to 80% in terms of time taken for legal research while another testimony claimed that Ross Intelligence’s online platform functioned like a “first-year associate doing topflight legal research”.

JPMorgan Chase & Co developed a programme called Central Intelligence (COIN) to automate the work of its law firms using AI. The programme helps interpret commercial loan agreements and is said to accomplish 360,000 hours of work in seconds.

Anton says a few law firms in Singapore have subscribed to SmartLaw’s platform. The start-up is also in discussions with the Singapore Academy of Law, a promotion and development agency for the country’s legal industry, about some other initiatives.

SmartLaw is aiming to provide its services to the Malaysian legal industry by this year. In fact, its services would have already been available locally if not for the Covid-19 pandemic that restricted individuals from travelling overseas since early this year, says Anton.

“I have close contacts in Malaysia. And we would have been in Malaysia already if not for the Covid-19 pandemic. I would rather meet our potential clients face to face instead of online as legal services are quite a complicated matter.

“However, I’m going to talk to them via Zoom by mid-October if there is still no progress. Our aim is to make legal services available online to anyone, anywhere, at anytime,” he says.

Law firms apprehensive about AI despite obvious benefits

The benefits for the legal industry in adopting advanced technology, including AI, are apparent. It saves them time and money by speeding up their research, says Anton.

“Law firms spend most of their time conducting legal research, which is the groundwork, instead of drafting documents or mounting a defence. With AI, they no longer need to spend an enormous amount of time on it,” he explains.

When hundreds of hours of legal research are cut to seconds, it also means that law firms can afford to take on more legal and hire fewer people.

“Lawyers can also spend their time on more important matters and specialise in areas in which they are interested,” Anton notes.

The cost of adopting AI services provided by the likes of SmartLaw is affordable for law firms of various sizes, he adds.

Without divulging its pricing, Anton says users can pay for modules (whether it is the eDiscovery or prediction module) or pay per use. They can also opt for monthly or annual subscriptions for one of those modules or both.

“We will localise and adjust our pricing when we offer services in other countries.”

However, law firms are slow in adopting AI technology as they are worried about its impact on the legal industry. This is because innovations like these could significantly reduce billable hours, and thereby, their income. It could also mean that legal associates, the ones who are usually tasked with conducting this research, become redundant.

However, Anton says, legal firms need to face facts and not hide from technological advancement. And even if they bury their heads in the sand, it is only a matter of time before the industry is disrupted. Change will happen, whether they like it or not so it is better if they remain in the know and ahead of the curve.

But it’s not all bleak. Anton points out that while repetitive or mundane tasks will be taken over by technology, new jobs will be created.

“For instance, law firms will need to hire legal engineers who can help them to understand and adopt technology. There is a fear that AI will replace people. While this may be true in some cases, it also creates new jobs that could reduce costs, generate higher ROI (return on investments) and reduce human errors at work,” he says.

By making legal services cheaper, technology will also democratise the legal industry by making it more affordable to the man in the street, he adds.

“Justice will be democratised. Legal services today are expensive and the ordinary people might not have access to good lawyers. However, justice shouldn’t mean the more you pay, the better [representation] you get.

“Technology has democratised many industries. The legal industry is one of the last frontiers,” he says.

As start-ups like SmartLaw offer their services online, it also makes legal services more accessible to the masses as they can engage these services directly through an online platform.

“For instance, a person can use our prediction module, at a fraction of the cost, to seek an opinion on whether to sue another person. He or she does not need to go from law firm to law firm to seek an opinion.

“Or, depending on the gravity of the matter, a person can use the online platform for a first opinion and engage other lawyers for a second or third opinion,” he says.

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Law Firm Meets Incubator: Driving Legal Innovation From Within

(Image via Clifford Chance)

In last month’s article, we discussed how Dentons is pursuing an outside-in investment model in legal tech innovation by working with Nextlaw Labs and NextLaw Ventures. Leverage of a venture capital model is a unique approach for a law firm to spur innovation — but there are certainly other approaches.

To highlight a different and perhaps more traditional approach, I reached out to Jeroen Plink, CEO of Clifford Chance Applied Solutions. Jeroen boasts more than two decades of experience in legal technology development and became a pioneer of legal tech long before it was a familiar phrase in our industry. He started at Clifford Chance as an associate in the firm’s Amsterdam office and went on to found a legal tech software company which he sold to Practical Law Company (PLC) in the UK. In 2007, he established PLC US, of which he served as the CEO.

I’m sure most of you are familiar with PLC and the then groundbreaking approach to providing actionable content to help lawyers with processes such as managing buy-outs and handling contract management. After the company was sold to Thomson Reuters in 2013, Jeroen continued work in the legal tech space as an advisor for investors in legal tech companies. Through his advisory work, he came back in contact with Clifford Chance, working with Bas Boris Visser, Partner and Global Head of Innovation and Business Change at the firm, to discuss innovation in the law. The result of their work together has taken the form of Clifford Chance Applied Solutions, an organization within the firm, with Jeroen as its CEO.

“We are seeing tremendous pressure for in-house teams to increase speed and efficiency, lower costs and simultaneously play a more strategic role within their organizations,” said Jeroen. “The Applied Solutions team works closely with Clifford Chance’s clients to meet that demand. Our chief objective is to work with the firm’s clients, technology partners and lawyers around the world to develop new tech solutions that aim to solve some of the most common challenges facing practitioners.”

The key difference between Dentons’s model and Clifford Chance’s is the role that the firm takes. In Dentons’s case, the firm acts as an anchor investor in an independently run VC fund that seeks new legal tech startups to support. In Clifford Chance’s model, Clifford Chance Applied Solutions is a company related to the firm, creating software solutions for its clients.

Clifford Chance Applied Solutions is one of three units underpinning the firm’s Innovation and Best Delivery strategy, governed by Clifford Chance’s innovation leadership group. The other two units are Clifford Chance Create, which focuses on defining the future of legal services through collaboration, exploration, investment, and testing; and Best Delivery, which brings together experts in process improvement and legal project management together with lower cost delivery centers and technology solutions to help lawyers.

“Clifford Chance Applied Solutions combines the firm’s legal expertise and industry-leading software to help our clients cope with increasing regulatory pressure,” Jeroen explained.

Ideas for new products for Clifford Chance Applied Solutions come from clients and lawyers in the firm. Selection of new ideas is a rigorous process that includes various stakeholders. Before the firm makes a decision to invest in a new product, various criteria need to be met, the most important one being that the product could provide meaningful benefits to their clients. Another important factor is the desire for products to leverage the firm’s practice areas.

“Our product development team includes people with strong experience developing products from the legal market. Our recently appointed head of product has been a finance partner at an Am Law 50 firm, followed by over 10 years of product development experience at PLC and Thomson Reuters.” Jeroen said. “An important aspect of our development methodology is to include the end users and Clifford Chance lawyers throughout the process, collect their underlying knowledge, and combine their know-how with the right technology solution.”

While some solutions may be very niche and specific to a particular market, Jeroen and his colleagues have identified a number of use cases that are independent of practice areas. “Using CCDr@ft, our document automation as a service offering, we have automated, for example, all mid-market loan documentation for a large bank allowing over 2,000 loan officers, not lawyers, to create all loan documents independent from the legal team. The same technology is being used in a large media investment fund to automate corporate structuring transactions,” said Jeroen. “This solution aims to increase efficiency and ensure consistency and compliance with the firm’s policies whilst reducing the workload of the legal department. One bank recently reported a 20 percent increase in workload but using this technology they were able to stay at the same headcount.”

Through their work with Clifford Chance’s clients around the world, the Applied Solutions team has a unique view on challenges facing lawyers and the tech solutions that will help overcome those challenges. “Historically, in the US, eDiscovery and legal research were the main focus for legal tech,” Jeroen said. “In the last few years, in both the UK and in the US, the focus is shifting to software that helps clients to better understand what’s in their data. In legal research, artificial intelligence is playing an increasing role. I think that data extraction has significant potential for functions such as due diligence. We’re also seeing some firms use data science to extract value from historic matters including time writing systems to standardize matters and enable better assessment of fixed fees.”

Clifford Chance Applied Solutions provides another model that law firms can look to for practical means of driving innovation forward. As we see more examples of firms creating means for developing legal tech, we may see an acceleration not only in rate of adoption of new solutions, but also new use cases for the industry to solve.

May Goren Photography

Dean Sonderegger is Vice President & General Manager, Legal Markets and Innovation at Wolters Kluwer Legal & Regulatory U.S., a leading provider of information, business intelligence, regulatory and legal workflow solutions. Dean has more than two decades of experience at the cutting edge of technology across industries. He can be reached at Dean.Sonderegger@wolterskluwer.com.

Law Firm Meets Incubator: Driving Legal Innovation From Within republished via Above the Law

[zltech]

Identify, Review and Remediate PII with Compliance

Understanding the importance of identifying, reviewing, and remediating PII and the practices best for it To summarize, data is the new superpower, and with it comes PII, which may make or break your business. As a result, you must actively identify, review, and remediate PII per industry-specific regulations. Reach out to an expert here to learn more about accomplishing it with ease.

It is reassuring that certain things remain the same year after year in a world of uncertainty and change, such as customer personally identifiable information (PII) – the most commonly exposed category of data with the highest cost per record. However, this does not have to be the case, as the report also shows that organizations using technologies like artificial intelligence (AI), analytics, and automated orchestration were the most successful in reducing data breach expenses. Some steps in doing so are to understand your industry-specific regulations, build policies, identify, de-duplicate, and defensibly delete or remediate the consumer PII from the enterprise database.

Know the Compliance Regulations

Due to the growing data privacy concerns, governments and regulatory bodies have enacted several industry-specific compliance regulations to regulate how you acquire, manage, store, use, and transfer sensitive information depending on your business location and where or who your consumers are. The following are some of the most frequent compliance requirements:

Health Insurance Portability and Accountability Act (HIPAA)

General Data Protection Regulation (GDPR)

California Consumer Privacy Act (CCPA)

Securities Exchange Commission (SEC) Rule 17a-4

Risk Assessment

After understanding which compliance regulation applies to your company, perform a risk assessment of your internal data privacy security procedures before a hacker does. You must identify the types of PII your organization has and security concerns, vulnerabilities to an attack, risk management approaches, control mechanisms, and defensive capabilities. 

Build or Update Policy

The next step would be to build or update your PII privacy policy around the idea that no PII should be kept in the company database unless it has business value. And in that case, the PII should be encrypted using best-in-class industry technology and resources.

Identify and Index PII

Various firms hold different PII types, such as credit card information held by a financial firm and healthcare data held by insurance companies. As a result, it is critical to figure out what kind of PII your organization has, why it is there, and where it is kept to be referenced later during the eDiscovery, flagging, and deletion or deletion remediation stages. This can be done using in-place file analysis management solutions.

De-duplicate PII

De-duplication is a way to get rid of all that redundant, obsolete, and trivial (ROT) data uncovered with the help of file analysis systems. This move will significantly lower the amount of your whole content collection and your PII footprint, making it much easier to maintain.

Defensibly Delete PII

While you may feel that saving as much data as possible is preferable, PII may represent a data privacy security risk if left unchecked. As a result, you must remove the PII of customers who have stopped doing business with you, workers who have left the company per the industry-specific regulations. Additionally, PII discovered on idle devices or in abandoned accounts, and people who have requested that their personal information be destroyed should also be defensibly deleted.

Classify PII as Sensitive

Not every PII is sensitive to the same degree. Email lists, for example, must still be secured, but their level of secrecy is far lower than that of client records, including credit card details. You may get a feel of what your security program needs by categorizing data according to confidentiality and the effect if their privacy is breached.

Automate Remediation

The first four stages of managing your PII footprint will help you achieve compliance in the short term. The best way to ensure privacy compliance is to regularly review and modify your internal policies and perform file analytics audits. File analytics processes can be scheduled to run every night or outside of business hours, reducing operational downtime. This takes no additional effort because you already know where all your PII is stored.

[biaprotect]

Surprise! There’s a New eDiscovery Pilot Program Out There, and It’s a Doozy…

By Brian Schrader

Every once in a while, from a corner of the eDiscovery industry, comes something unexpected and hugely consequential. The latest comes from the Arizona and Illinois federal courts, where a pilot program for speeding up eDiscovery was launched recently. While the primary goals of the “Mandatory Initial Discovery Pilot Project” are laudable, a lot of industry experts and commentators – including us – are sounding alarms.

One of our favorite blogs, Above the Law, recently did a nice summary, which can be read here. And you can read up on the program and watch some informative videos on the Federal Judicial Center (FJC) website here.

While the program has the greatest of intentions – to simplify, speed up and reduce the costs of discovery (all discovery, not just eDiscovery) – there are aspects of the program that could have quite the opposite effect, as many commentators have pointed out. Probably the single largest concern expressed by many, and shared by us here at BIA, is the timing requirements. The program requires document request responses and productions be completed in less than 100 days. Yes, you read that right – 100 days. And it seems that there are very few exceptions or extensions allowed.

Now, yes, the program does exempt a series of case types that likely would be impossible to complete in such a short time period, such as MDLs, but it doesn’t seem to provide a great deal of flexibility beyond that. And, yes, while many cases are small enough that all discovery work could be doable in such a short time period, there comes a point on the curve where these new rules will increase the costs, decrease the efficiency and lead to general chaos.

And, while the materials and video commentary provided by the FJC acknowledge, in somewhat vague references, that everyone expects discovery would continue past the first 100 days, they couch that post-100 day discovery in terms of “continuing obligations” in discovery that exist today, and not in terms of extending the timelines where necessary.

Now don’t get us wrong here, BIA has always been for efficiency. We’ve built our reputation on designing and implementing eDiscovery tools and workflows that become just another business process – one that is smooth, efficient and affordable. Indeed, one of our Guiding Principles is “Transformative Solutions: We create order from chaos.” So, when given the opportunity to implement an improvement, we’re all over it. But, we’ve also learned that with each new idea often come new questions and unintended consequences.

And that’s our concern here. One of the program’s stated goals – in fact, one of the stated goals of nearly every innovation in and reformation of the eDiscovery industry – is to reduce costs. But at some point, at some case size, the goals of cost controls and shortened time begin to conflict with one another. And it’s that conflict that we believe the program has overlooked, or, at least, not provided for in any way.

In software development, there’s a concept called the “Mythical Man Month.” First introduced by an IBMer many decades ago, in short, it’s the idea that, at some point, putting more people or resources into a development project starts to increase the time required, not decrease it. How could that be? Well, adding more resources in a desperate attempt to hit a deadline can actually cause you to miss that deadline by an even wider margin because you are spending more time ramping up new members and managing an ever-larger team.

Same thing here. You can’t always just add resources to hit a 100-day deadline, regardless of the case size. Let’s take that “Mythical Man Month” theory and apply it to something more fitting to discovery: document review. If you have 600,000 documents to review, and you have reviewers who can review 60 documents an hour, that means that a single person would take 10,000 hours to review all of the documents. Extrapolating that out a bit, and assuming the averages hold, with 10 reviewers, this document review process would take 1,000 hours. 100 reviewers would take 100 hours. 1000 reviewers would take 10 hours. 10,000 reviewers would take an hour, right? Of course not. (And please, no TAR comments – the example here is for illustration purposes).

You see how crazy that gets, but it illustrates the point: at some level, simply committing more resources won’t work, or worse, actually works against meeting the goal. There are going to be cases that simply cannot be done within the 100 days, and a lot more cases where doing so will quickly become economically prohibitive, violating one of the primary goals of the entire program.

There’s another adage that fits here, too: You can’t have something (1) good, (2) fast, and (3) cheap. The best you can hope for is two out of three – such as paying out the nose for quick delivery of a good product or paying below market rates to get a sub-standard product quickly.

In this case, “cheap” isn’t an option, as the law mandates that eDiscovery efforts be “good” (not perfect, but good), and this pilot program has strict rules on “fast.” Here, the seemingly arbitrary 100-day deadline, especially when combined with no real guidance on exactly what that means and without any provision for judges to use their own common sense where appropriate, undoubtedly will have the unintended consequence in larger cases of drastically increasing eDiscovery costs – probably by a significant factor.

But this program can be easily fixed. Judges must be given discretion to adjust schedules to balance the goals of costs vs. time. There simply cannot be a bright-line rule that outright forbids any reasonable consideration. Courts cannot give up the primary goal of discovery being “good,” so the rest has to be balanced between “fast” and “cheap.” It’s critical that everyone understand that the cost to do something escalates as the time to do it shrinks – especially in a period as short as 100 days.

This isn’t the first time that strict and unflinching guidelines have been imposed on courts, tying judge’s hands, preventing them from being the true arbitrators of justice and resulting in not-so-pleasant unintended consequences. Let’s hope that that this oft-repeated lesson is learned once again during this pilot program, and judges are given the discretion to tailor timelines as common sense and cost controls require.