Since 2008, Volkswagen programmed vehicles sold in the U.S. to falsify government emissions tests, enabling diesel VWs to spew forty times more pollutants than the law allowed.  I don’t even have to include the lawyerly qualifier, “allegedly,” because, after years of denials, misdirection and efforts to undermine investigations, Volkswagen has fallen on its sword and admitted its intentional misconduct.  It’s a breathtaking revelation in every sense of the word, and it’s going to drive a lot of American litigation…and e-discovery.

I thought we might get a jump on the discovery issues in terms of both the usual and unique challenges that Volkswagen and its suppliers, dealers and counsel face, as well as the discovery duties of the estimated 482,000 owners of affected vehicles in the U.S., many of whom are sure to file individual actions or join class-actions seeking damages or rescission.  Let’s not forget the regulatory and Congressional investigations that will ensue, and actions by shareholders and dealers.  Before it’s over, billions of dollars will change hands, some of it in court; and because this concerns software subroutines, electronic evidence is key.  Continue reading →

I wrote this four years ago, and didn’t post it. With the Rules amendments effective in just over two months, I thought it timely:

Litigants have been ignoring e-discovery obligations with impunity for so long they’ve come to think of it as an entitlement.  Protected from predators, few have evolved.  But now that opponents and courts are waking to this failure, those who’ve failed to adapt are feeling exposed. They don’t like it, and they want protection.  They call it “proportionality.”

Proportionality sounds wholesome and virtuous, like “patriotism” or “faith;” but like those wholesome virtues, it’s sometimes the refuge of scoundrels.

The much-ballyhooed “rise in sanctions” is designed to mislead.   The solid metrics we have on spoliation sanctions prove that the risk of being sanctioned for negligent non-preservation remains miniscule (.00675% per a report from the Federal Judicial Center).  Put simply: In the United States, you are more likely to be hit by lightning than to be sanctioned for non-preservation of ESI. Continue reading →

With summer holidays and busy lives, I wouldn’t expect many to notice that BIYC has been quiet for six weeks while I’ve been working for a German client and living in Frankfurt.  I don’t know what it says about me that I have fallen head-over-heels for what many regard as the dullest city in Europe; but, I confess I find Frankfurt beautiful and captivating.  I’m sad to leave her behind as I return to the States in a few days.  I can’t say much about what I’ve been doing; but, it felt like a graduate course in corporate (and European) thinking respecting electronically stored information, privacy, regulation, litigation and the challenges faced by global business in identifying, preserving and producing ESI.

For all we tout “information governance” in articles and conferences, the global reality is that functional info gov is as rare as a good hair day for Donald Trump.  Even in industries where data retention is strictly regulated and extensive—like securities trading and banking—information implicated in discovery clumps and clusters hither and yon—some encrypted, some not—on legacy systems and media, as Notes mail and Exchange mail, within archives and hundreds of specialized applications and structured databases, as voice recordings on incompatible systems and loose documents on network shares.  But, these are mere technical hurdles, small next to the challenge of complying with internal corporate and IT policy, cross-border privacy laws and the risks and costly consequences of outsourcing IT.

All of this could be managed—even efficiently and cost-effectively—were it not for the knowledge gap that exists between the lawyers who demand and direct the work and those who do the actual preservation, collection and culling. Continue reading →

Yesterday’s post on the Digital Strata blog reported on a 2014 order of a U.S. District Court in Connecticut that applied the U.S. Supreme Court’s decision in Riley v. California, 573 U.S. ___, 134 S. Ct. 2473 (2014) to civil discovery.  I think the Court’s reliance on Riley is misplaced in the civil discovery context; not just because Riley involved state action, but because civil discovery affords a litigant greater protection from oppression and intrusion than that attendant to the search and seizure in Riley.  Continue reading →

Disagreements about scope and process in e-discovery shouldn’t split between plaintiffs’ and defendants’ interests. After all, everyone is a requesting and producing party, whether north or south of the “v.”  Yet, the reality is that most defense counsel see themselves as producing parties, and most plaintiffs’ counsel identify with requesting parties.  That unfortunate alignment poisons our ability to set aside allegiances and be officers of the Court mutually determined to find the most effective and efficient means to discover evidence illuminating the issues.

Cooperation in e-discovery is derided as naive in an adversarial system of justice, and “discovery about discovery” is vilified as a diversionary tactic, a modern take on the maxim, “if you can’t try the case, then try your opponent.” Counsel for responding parties are quick to note that no party is obliged to deliver a perfect production. They’re absolutely right.  Perfection is not the standard.  But, is a producing party entitled to fail before a requesting party may inquire into the scope and process of e-discovery?  Must we wait until the autopsy to question the care plan? Continue reading →

I did a free webcast today for OLP, billed as “Top Tips for Preservation.”  If you missed it, they will make it available to members online.  Although I spent much of my time addressing challenges unique to preservation of mobile devices like iPhones and tablets, I was faithful to the title and shared nine tips I termed “Preservation Platitudes.”  None break new ground, but I hope at least a few count as sensible advice:

One

Be Prepared to Preserve

READY: Have a preservation plan.
SET: Invest in preservation readiness.
GO: Do something.  Do it now.

You need to have an action plan at hand for any case that comes in.  There are sources of information and preservation obligations that cut across all matters and apply to those on both sides of the V.  If you wait until the case comes in to develop the framework of a defensible preservation plan, you subject the client to needless risk. Clients don’t pay us to learn on their nickel.  They pay us to know–or at least to know how to get started.

Preservation readiness means having strategies and resources to draw on, so as to be able to hit the ground running.  It might be training someone in IT to be competent in forensically sound imaging techniques and chain-of-custody documentation.  Or, it could be having established relationships with IT and service providers.  A professional knows who to call and has a sound sense of what it will cost.

Many failed preservation efforts come about because someone dithered.  They hoped that the case would settle.  They assumed it was someone else’s job.  They failed to act when action could have saved the day and lowered the cost considerably.  Do something.  Ideally, the right thing. Continue reading →