By Cynthia Courtney, Esq., Vice President, Discovery Engineering

The case law continues to address the sufficiency of litigation holds and when they are triggered. In a series of blog posts, we will address the case law and practical tips about litigation preservation of ESI.

Let’s construct a hypothetical set of facts. Your client is a large chain doing business through franchisees. The client could be a restaurant chain, a hotel chain, or an auto parts and repair chain. The franchisor-franchisee relationship is governed by a myriad of laws, mostly at the state level, although there are federal laws that also regulate these relationships, such as the federal Petroleum Marketing Practices Act. These laws set out detailed notice requirements specifying what the franchisor must do in the event that it changes some aspect of the relationship or terminates the franchisee. Litigation may result from the franchisor’s actions, especially termination. Not surprisingly, there are lawyers who make a living advising franchisors and defending litigation brought by franchisees. Your client is aware that spoliation sanctions may result from the failure to preserve relevant evidence and asks you to provide guidance about when it should issue a litigation hold in relation to possible franchisee litigation.

The question of when the duty to preserve arises is in part a factual question. If you are advising a franchisor client, you will want to understand the relationship between the franchisor and franchisees in that particular industry, what events may occur in practice and as required by law and which occurring events signal litigation.

Let’s say your hypothetical franchisor client is a hotel chain. Consider asking the following questions:

1. Under the applicable law, what events can trigger a franchise termination?
2. What events actually trigger a termination in practice for this client and the hotel industry? Examples may include reports of bad housekeeping, dirty common areas, or petty premises crime.
3. Has the client made a decision that certain events will automatically trigger a termination?
4. Importantly, if the client has such a policy, does it follow that policy consistently?
5. How many times per year do terminations occur?
6. What is the breakdown of franchise termination litigation in relation to each type of triggering event?
7. When a franchisee is terminated, what stages typically occur before litigation is filed? For example, a termination may be met by a letter from the franchisee’s lawyer, followed by negotiations and a correction proposal, followed by a threat of litigation, before a complaint is filed.
8. How often does a franchise dispute ripen into litigation following contact by a lawyer?
9. What steps does the client actually take when it implements a litigation hold in relation to franchisee termination litigation? Importantly, are the steps the client takes to implement a litigation hold the appropriate steps to preserve necessary evidence?
10. What is the cost and burden of implementing litigation holds in each termination situation?

As these questions imply, a numerical analysis can help a client decide when it must implement a litigation hold. If your hotel chain client issues 1000 termination letters per year, it may resolve the dispute in most of those situations, with litigation resulting infrequently. The table below shows a breakdown of situations that may trigger franchise terminations along with the stages at which a dispute is resolved or following which no further action occurs.

You can safely advise your client that litigation holds need not be implemented simply upon termination. The letter from the franchisee’s lawyer appears to be an initial communication that infrequently leads to litigation. Based on the numbers, you may conclude that the threat of litigation should prompt the issuance of a litigation hold, although you may take a different approach for categories that have a higher overall incidence of litigation, imposing litigation holds earlier in those categories.

The analysis detailed above works best when events progress in the orderly fashion outlined. However, it is possible that litigation may immediately follow the franchise termination without intervening activity. If that scenario is an outlier, it is still not necessary to implement a litigation hold upon every franchise termination.

In Part 2 of this post, we will look at the state of the case law.

In 1981 I was in 5th grade. One day a classmate, Jared, brought in this magical device called a Walkman. No kid in our school had ever seen one to my knowledge. Every time Jared brought in the Walkman it was if Moses was walking down Mt. Sinai with the Ten Commandments; except the tablets had buttons and played cassette tapes. Eventually I got to use the Walkman. I recall that it was like being transported into my own amphitheatre. When that thing was cranked you could barely hear yourself think, hear or talk.

Our Principal that year was named Kirby Newman. All the kids referred to him as “Kirby” and I am pretty sure we meant it in a less than respectful manner. I guess we thought it was a funny name. Back to the Walkman. The volume was cranked to 10 and I was blasting some cheesy 80’s song. I think it was Rapture by Blondie, but not 100% sure. I was standing near a group of friends at recess. We were at one end of the building and around the corner on the other end came Kirby. Now whenever Kirby was near we made sure that the warning call went out, similar to how the Yellow-bellied Marmot shrieks a warning signal when predators are near. Well, I happened to see him first and said softly, “hey everyone, here comes Kirby”. OK, I thought it was said softly. I actually YELLED it. Kirby double timed it over to me, pulled the headphones off my head and gave them to Moses, I mean Jared. He then grabbed me by the arm and escorted me to the Office. I guess he did not like being called Kirby despite it being his first name. Back in those days kids weren’t allowed to call adults by their first names.

This is a really good example of not having a firm grasp of the pitfalls of new technology. I thought I was broadcasting a message to a select few, but it was heard by Kirby and I am sure the whole playground. I learned the hard way…two days of detention, with Kirby!!!

What does this have to do with eDiscovery?

A lot if you think of the Walkman as Social Media, me YELLING as posting a message and Kirby as opposing counsel.

My message was not intended for anyone except for my small, select, trusted group of companions. This is similar to social media posts that may be intended for one person yet end up being available to everyone and then used against you. Former Representative Anthony Weiner knows a lot about this.

Another case that had nothing to do with Wiener was a personal injury case out of Georgia, Daniels vs. Atlanta Refrigeration. In this case a young woman was injured in an auto accident leaving with her with what she claimed as injuries that made it difficult for her to work and enjoy life. However, the young woman appeared to be telling a different story on Twitter after the accident. One such tweet included discussion around an “epic weekend” in New Orleans and showed pictures of her with friends at a beach for spring break. Another tweet went on to mention “I’m starting to love my scar”. These tweets and others gave the jury the impression that she wasn’t really as injured as claimed. Initially the plaintiff requested over $1 Million for her injuries. The ending dollar amount was slightly south of $150K and representatives for the plaintiff believed the tweets played a big role in the lower than anticipated amount. It was her “Kirby” moment.

So what does one do to ensure that posts, pictures, tweets, messages, etc cannot be used against one in a court of law?

The best answer is STOP using social media when your attorney tells you to stop using social media. If you are an attorney and reading this then please send this to your client so they don’t pull a “Kirby”.

OK, so the tweets, likes, messages, posts, pins, pokes and pictures have come to an abrupt halt. What about the stuff that is already out there? One suggestion is to check the privacy settings on all your social media sites and lock them down! Everything up in that “social media cloud” can and will be used against you!

One popular social media site, Facebook, allows a user to deactivate their page. This is not the same as deleting the page, which should NOT be done if you are involved in litigation or can reasonably anticipate litigation and the FB page may contain relevant information.

From FB on deactivation:

“When you deactivate your account, your timeline and all information associated with it disappears from Facebook immediately. People on Facebook will not be able to search for you or view any of your information.

If you’d like to come back to Facebook anytime after you’ve deactivated your account, you can reactivate your account by logging in with your email and password. Your timeline will be restored in its entirety (friends, photos, interests, etc.). Remember that you will need to have access to the login email address for your account in order to reactivate it.”

Also from FB regarding permanent deletion:

If you don’t think you’ll use Facebook again, you can request to have your account permanently deleted. Please keep in mind that you won’t be able to reactivate your account or retrieve anything you’ve added. Before you do this, you may want to download a copy of your info from Facebook. Then, if you’d like your account permanently deleted with no option for recovery, log into your account and fill out this form.”

I know from personal experience that a user can deactivate an account and then months later log back in and all the pictures and messages remain. How do I know? Because I have done it with my own account and based on the above message from FB one would have to go through some extra steps to permanently delete an account. Now this is interesting because a recent case, Gatto v. United Airlines and Allied Aviation Servs., et al., involved sanctions because a user deactivated his FB account. Did someone misspeak and say deactivate when they meant permanently delete? I don’t know.

What I do know is that from my experience, deactivating a FB account puts in a deep freeze like Han Solo in carbonite. Your data may suffer hibernation sickness when you reactivate, but after some time all is well and Han is smooching with Leia once again. However, unlike Han, it appears the data in this matter didn’t make it. The plaintiff in this case provided his FB credentials to defense counsel who proceeded to access his account. Plaintiff received a message that someone from an unknown IP address was trying to access his account so he deleted it and 14 days later it was permanently obliterated, as per FB’s policy. The court did not find this at all amusing and sanctioned plaintiff.

This situation may have been prevented if plaintiff (or defense insisted/requested) used the DIY function (not the best option IMHO) in FB, which allows a user to download and preserve all his/her data. Additionally, eDiscovery preservation tools exist that specifically deal with social media and cloud-based sites (e.g. X1 Discovery and AccessData). Wouldn’t it be great if the court knew that these tools existed too! At D4, we use such applications to ensure our clients preserve data in a reasonable fashion.

So what are the takeaways from all of this rambling?

1. Don’t pull a Kirby! – Don’t assume that only those intended to hear the message heard it.
2. What you do or say on social media sites will be used against you! – Self explanatory.
3. Lock it down! – Ensure that only you or those you trust can see your social media musings.
4. Preserve or deactivate, don’t delete! – Each site is different so make sure you are preserving evidence properly.
5. Reach out for help! – eDiscovery and Forensic experts do this for a living. If you are not sure how to properly preserve, collect, review, or produce ESI then make a call or send an email. This goes for judges, litigants, attorneys, etc.

By Josh Headley, Discovery Engineer

Although this blog post is about Big Data, it will not feature stock photos of the tip of an iceberg bobbing peacefully around the sea while the giant frozen mass that comprises its core is hidden beneath the water’s surface. In true e-discovery pundit form, however, its title contains a movie reference. According to Pinterest coat-tail-riding site Repinly, two of the top ten categories on Pinterest, which hosts more than 30 million visitors per month, are wedding-related and have attracted more than 2.4 million followers. For better or worse, what is the end result of the 2.5 million U.S. weddings per year which tally over $40 billion dollars exchanged? You got it. BIG DATA.

If you’ve ever been married (I won’t ask how many times) or have at least attended a wedding you surely have an appreciation for the amount of time and the percentage of life savings the couple and their families contributed to the affair (no pun intended.) To capitalize on this resource expenditure, David’s Bridal has walked down the 2013 aisle with Big Data technology to help figure out what the bride and groom want, what their expectations are, what their budget is, and how far can that budget be stretched. Budget stretches can be accomplished by joining the forces of the physical shopping experience and the phenomenon of social media.

Think of all the information that can be used to improve the bride’s special day and provide exceptional financial returns to the organizers involved:

• A list of dresses, styles, and sizes that the bride has tried on in physical stores: what does she think of them and what were the reactions of others?
• Profiles of the bride’s parents, who will likely pickup much of the tab
• Products, artists, bands, books, and celebrities the bride “likes” on Facebook
• Products and services, even from other bridal outfits, that the bride has “pinned” to her David’s Bridal MyEvents mood-board or “inspiration board”
• Details of MyEvents “tasks” that the bride has assigned to her wedding party and family members
• Social information about the brides maids and maid of honor, hopefully to form a bond with David’s for their own eventual weddings
• Demographic and financial information about previous weddings at the same venue
• “Sentiment” gleaned from social media accounts owned by anyone on the guest list or in the wedding party

What does this all mean for electronic discovery? Simply put, it increases the complexity of the effort to identify, preserve, collect, and present ESI. It also raises privacy concerns and begs the question “how far is too far?” when corporations mine for useful data. Imagine all the sources of ESI that could be considered in a Bridezilla contract dispute with David’s or any number of subcontracted service providers.

Gone are the days when a wedding planner could nonchalantly glance at the size and quality of the bride’s engagement ring to estimate her wedding budget. Big Data is making that process even easier.

How is your firm planning for the future of Big Data? Let us know!

By Tom Groom, Vice President, Discovery Engineer

Sedona is known for its beautiful scenery. It is also known as a place that promotes health, harmony, convergence and tranquility. It is the perfect place to meet and discuss the future of eDiscovery.

The Sedona Conference® RFP+ Vendor Panel met last month to look at the current state of the industry and through dialogue, brainstorm on what we see on the horizon for the next five years. What is next for Technology Assisted Review? Do we need to add “BIG Data” to the glossary? Where does Information Governance intersect with eDiscovery? Has the RFP (Request for Proposal) process changed in today’s economy and does it need to be updated? We also discussed ideas on what needs to be done in the industry to increase eDiscovery acumen for the practitioner from a wide variety of viewpoints and how that would affect the role for this small technology advisory panel in the future.

The goal of the RFP+ Vendor Panel is to provide tools that enable a better informed marketplace that speaks the same language and will ultimately lead to reduced costs for all parties with higher quality and greater predictability. The deliverables we worked on last week involve finalizing the upcoming 4th Edition of the E-Discovery & Digital Information Management Glossary and the third edition of the Navigating the Vendor Selection Process.

D4 has been participating on this panel for several years and it was exciting to be a part of this group for the third year in a row. This group is indeed a “who’s who” in this space. Collectively, we’ve agreed to speak our minds when we meet, but the final output will be a collective conscience of what was discussed. Yes, Sedona may be the only place on the planet where that can happen. Time will tell.

ABOUT THE SEDONA CONFERENCE

The Sedona Conference® exists to allow leading jurists, lawyers, experts, academics and others, at the cutting edge of issues in the area of antitrust law, complex litigation, and intellectual property rights, to come together – in conferences and mini-think tanks (Working Groups) – and engage in true dialogue, not debate, all in an effort to move the law forward in a reasoned and just way.

The organization’s hallmark is its unique use of the dialogue process to reach levels of understanding and insight not otherwise achievable. The Sedona Conference® Working Group Series is designed to focus the dialogue on forward-looking principles, best practices and guidelines in specific areas of the law that may have a dearth of guidance or are otherwise at a “tipping point.” The goal is that the Working Groups, the open Working Group Membership Program, and peer review process, will produce output that is balanced, authoritative, and of immediate benefit to the Bench, Bar and general public.

By Nicholas Clayton, Director of Discovery Services

We see trends come and go in the eDiscovery world—new products, new technology and changes in the law. Service providers, trying to be nimble, react to these developments, creating marketing and offering webinars to demonstrate expertise. This is great—I am all for marketing and webinars, but as a sales professional who has spent a number of years in this business, I believe that if we stay true to the basics, even if we don’t jump on the latest buzz, we ensure a successfully ran project. The following are my top three service provider basics.
1. COMMUNICATION:
As is the case with almost all relationships, communication is one of the most important cornerstones for a strong foundation. Strong internal communication within the service provider’s organization and strong communication between you and your service provider will take you most of the way to a well-run engagement. There are many team members that assist in the process of getting the project to the finish line so it is imperative that all internal components must communicate. Sales, client services, consulting, litigation support, processing, hosting, IT, analytics, and production may be involved with any project. If the sales person does not properly communicate with the client services or consulting team, there will be a ripple effect, which may lead to an undesirable outcome. Similarly, if the operations team does not properly communicate with the client services team, the client may receive incorrect reporting.

How will you know whether or not the service providers you are considering have strong internal communications? Ask them to describe their communication flow, including escalation of problems. They should have a description of their flow in place that they can promptly provide to you, and it should have few touch points—that is, the right people should be involved in communicating—not too few and not too many. Kind of a Goldilocks moment. Similarly, your service provider should respond promptly, keep you advised of project/case developments (often, if necessary) and alert you immediately should any issues arise.

2. BANDWIDTH:
Does the service provider have sufficient human and operational resources to get the current job done, and be ready for the next job? Are there too many points of possible failure because only a few people really understand the tools and workflow? Is one person wearing too many hats so that before you know it they are the only person who can really help you? (See Communication, above.) A team should have multiple experts—but not too many. Another Goldilocks example.

Operational bandwidth is also critical to support the rapid turnaround times so common in our industry. When choosing a provider partner, consider setting up a pilot project to vet their operational and human bandwidth. Don’t be fooled by how a provider characterizes their capability – It is your prerogative as a consumer to test them before committing on a larger scale.

3. ACCOUNTABILITY
While accountability can mean many things, I focus on my role as your main point of contact and my responsibility to deliver what was promised.

Things don’t always go as planned, so we have to remain accountable for the actual results. It is inevitable that mistakes will happen in any human-driven process. What matters is the frequency of these mistakes and how the provider responds to them. When choosing a long-term provider, simply ask them if they have proven metrics for Quality Control, deliverables, processing turnarounds times, hosting uptime etc. What is their response? If it is apparent you have caught them flat footed by asking this question, proceed with caution.

Delivering on what was promised is often harder than it sounds. If someone always says yes to deadlines that seem unmanageable, or does not provide alternative recommendations that may better fit the project’s needs, again, proceed with caution.

There are many more areas that we could dig into here but, in my opinion, these are three key building blocks for a sustainable and scalable relationship. There are many great providers and progressive technologies that have been developed to manage the demanding industry. My advice is to embrace technology, educate oneself on best practices and choose a partner that can help navigate these sometimes turbulent waters, and above all else, never forget about the basics.

By Cynthia Courtney, VP, Discovery Engineering

On the D4 blog and other blogs penned by experts in the e-discovery and litigation support fields, predictive coding, TAR, CAR—all powered by predictive analytics—has gotten tremendous coverage, especially over the last year. Working in this field has also opened my eyes to the range of ways in which predictive and linguistic analytics are used.

On April 1, I caught this segment on health news on NPR’s All Things Considered, which posed an interesting question: Were people happier in the 1950s than they are today? Or, as we believe—and watching Mad Men certainly supports this—were they more repressed, uptight, and depressed? It’s an intriguing question.

THE STUDY

A group of researchers set out to determine emotional states through an analysis of literature by exploring books from every year of the 20th century–over a billion words. NPR interviewed Alex Bentley, an anthropologist at the University of Bristol, to talk about the results of the analysis.

THE RESULTS

In 2010, Google had digitized about 4% of all books. Bentley and his colleagues at the University of Bristol decided to mine this Google database in order to track the use of words over time to see if certain words became more popular at identified points in history. Their computers analyzed 6 categories of emotions through all of the words they could identify that denotes the particular emotion: Sadness (115 words), joy (224), anger (146), disgust (30), surprise (41) and fear (92). The researchers initially believed that the evidence of these emotions—indicated by the use of the words exemplifying each category—would be relatively consistent over time. But what they found surprised them. They mapped all of their results onto a graph, with measurements of joy and sadness plotted on the Y-axis and the decades plotted on the X-axis. They saw that distinct peaks and valleys emerged—along the lines of key events of the 20th century. The 20s were the highest peak of joy. “They really were roaring,” says Bentley. Then, in 1941, at the beginning of World War II, the trend plunges dramatically into the sadness area of the graph, rising strongly thereafter and stabilizing during the 1960s and 70s.

What is interesting is that the books in the Google database were not only novels or non-fiction about current events, but also technical manuals and automotive repair guides—the entire kitchen sink of English-speaking writers and translators. Thus, says Bentley, “It’s not like the change in emotion is because people are writing about the Depression and people are writing about the war. There might be a little bit of that, but this is just, kind of, averaged over all books, and it’s just kind of creeping in.”

With the dramatic changes in culture during the 1960s and the advent of social media sites like Facebook where people can and do express anything, have the uses of these “emotion” words soared off the charts? No, and that is the most surprising part of the study. Instances of these words have declined throughout the 20th century and into the 21st. The exception? Fear-related words started to increase just before the 1980s.

HOW DOES IT APPLY TO LITIGATION?

All of this is fascinating, but what does it really tell us? And isn’t that the question that brings us back to the use of predictive analytics in litigation discovery? The Bristol Study appears to be a more objective and potentially accurate way—than self-reporting, for example—to gauge emotions. Similarly, with TAR/CAR/Predictive Coding, subject matter experts provide a baseline of relevance, then an algorithm, tweaked by human intervention, assesses the rest of the documents—with a degree of objectivity supplied by the predictive mathematics.

What uses of predictive and linguistic analytics have you seen in your non-work life?

By Josh Headley, Discovery Engineer

But does our Social presence truly reflect who we are? A Facebook profile is a largely self-manufactured collage designed to steer its viewers to adapt a certain perception of the author. LinkedIn is a great place to market yourself and showcase only the positive information that your professional circle should see. Twitter is a fantastic venue to show off how witty, informed, or deep you are using only 140 characters or less. Clearly, you can make the Internet see you in any light you wish.

I’m guessing, though, that if someone wanted to know the real you, they would need to browse through your Anti-Social Media accounts. Exhibit A: Evernote. Evernote emerged in 2008 as a simple note-taking application designed for cross-platform use. Since then, it has mustered a user base of over 50 million note-takers and claims to be registering 100,000 new accounts per day. Users can jot down simple notes, create task lists, append photos, and record voice memos (all with geo-location) via their computer or mobile device. Think of it as a Post-It note, Steno pad, diary, and life organizer all in one.

The application is inherently anti-social. In fact, in the words of Evernote CEO Phil Libin, “We don’t care about your friends.” Now, absent an audience of your friends, co-workers, or the general public, what sort of information would you expect to find in such a repository? Perhaps that genius business idea; those personal reminders you don’t want stored in Outlook; your action plan to demolish the competition; a cache of saved web pages; business cards from contacts you met at the conference; your medical history and questions for your doctor; or a collection of usernames and passwords.

With ease, Evernote also attacks the mundane rank and file level items like grocery lists, news feeds, honey-do lists, your workout routine, and that song you have to remember to download. What about those notes you took on paper and now have to re-type? No worries. Snap a picture, upload it to Evernote, and the system will OCR the image for you to make it searchable. Evernote is becoming so ubiquitous that Google is entering the fold with Google Keep.

If you still think Social Media is the ultimate treasure trove of information, consider what’s lurking in your custodians’ Anti-Social Media accounts.

By Cynthia Courtney, SVP, Discovery Engineering

What is “proportionality? How is it that we know that discovery must be “proportional”? The Federal Rules of Civil Procedure don’t mention the word, but the courts and commentators direct us to Rule 26 for limits on discovery that comprise the idea of proportionality; however, noticeably absent is the “P” word itself. In this multi-part blog post, we will take a look at proportionality, how it is defined and how it is enforced. This examination is prompted by the new civil procedure rules adopted by the State of Minnesota.

First, however, we look at the Federal Rules’ formulation of proportionality, which is the baseline against which all of the states are compared.

Rule 26(b)(2)(C)(iii) is considered to be the general formulation of proportionality:

C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. (Emphasis added.)

We then see that proportionality—if we agree that the foregoing provisions add up to the “P” word—is incorporated into the 2006 e-discovery amendments via F.R.Civ. P. 26(b)(2)(B), which provide that:

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (Emphasis added)

These provisions can be enforced through the issuance of a protective order under Rule 26(c)(1):

In General….The court may, for good cause, issue an order to protect a party or person from…undue burden or expense….(Emphasis added.)

The Supreme Court of Minnesota has now adopted amendments to its discovery rules which add the word “proportionality” to existing language that is identical to that found in the federal rules. These amendments were issued on February 4, 2013. Rule 1, which was amended to make it the responsibility of the parties and the court to assure that discovery is proportionate, now states:

These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81. They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues. The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation. (Emphasis added.)

Interestingly, in addition to the addition of the word “proportionality”, Minnesota Rule 1 now includes the word “complexity” twice; the Federal Rule does not mention the word “complexity”, although it can be implied from features like the needs of the case, the amount in controversy, the importance of the issues, and the importance of the discovery in resolving those issues.

Minnesota Rule 26 has also been amended, as follows:

(b) In General Scope and Limits. Discovery must be limited to matters that would enable a party to prove or disprove a claim or defense or to impeach a witness and must comport with the factors of proportionality, including without limitation, the burden or expense of the proposed discovery weighed against its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Subject to these limitations, parties may obtain discovery regarding any matter, not privileged, that is relevant to a claim or defense of any party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identify and location of persons having knowledge of any discoverable matter. Upon a showing of good cause and proportionality, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information sought need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery or admissible evidence. (Changes emphasized.)

As we see, much of the rule is still identical to the Federal Rule, but with two important exceptions: First, Rule 26.02(b) now contains an opening paragraph that states a limiting rather than an expansive formulation of what is discoverable, contrary to the history and precedent of the federal rules. That limiting language includes the federal formulation of proportionality, pulling it into the opening paragraph of the discovery rules. Second, the word “proportionality” is inserted into the “good cause” paragraph; not only must a party show good cause for expanding discovery, it must in addition show that the discovery sought is proportional.

In all likelihood, these provisions were added to give parties and the court better tools to keep electronic discovery under better control by requiring a check to the “P” box before allowing excessive discovery.

In our next post, we will examine what the Sedona Conference® has to say about proportionality in its recent publication.

The orders implementing the Minnesota rules can be found HERE and HERE. The new amendments take effect July 1, 2013.

By Peter Coons, SVP, Certified Information Systems Security Professional (CISSP®)

Google recently admitted that it violated American’s privacy during its Street View project. This acknowledgment came after a class action lawsuit filed by 38 states. Google collected e-mails, passwords and other personal information from open WiFi hotspots. In addition to a 7 million dollar fine Google has agreed to create a video on YouTube with instructions on how to secure your home wireless network.

Keeping your home wireless router open for all to access may seem like a neighborly thing to do, but it can have serious consequences. There are a plethora of tools available on the Internet that allows an unscrupulous user to steal data you are transmitting and receiving on open networks. You may not care about people seeing what you buy on Amazon, but what about your credit card information and personal photos? Do you ever access your e-mail from home or at a coffee shop hotspot? If you do, it may not be a matter of if, but when your data is pilfered.

What about your company? Does it provide an open hotspot for guests? While it may be difficult for a casual hacker to gain access to your corporate network through a guest hotspot, it is possible that employees unknowingly use the guest hotspot and then open up the gates for data theft.

Think about this scenario. You go to Starbucks and decide to connect your iPad or laptop to the open wireless network. You then proceed to login to your firm’s document review site to check on some documents before you go to the office. You connect to the site then enter your username and password. You may have just given those credentials to a hacker.

Comment [16] to the ABA Model Rules states:

“A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.”

This begs the question, does connecting to an unsecured and unknown hotspot violate an attorney’s ethical obligations?

Does your firm or company currently have a policy about connecting to open hotspots?

There are some simple steps one can take to keep data secure:

1. Don’t connect to open WiFi spots with the intention of accessing client data or sites that require logins or other personal information. Don’t do anything on an open hotspot that you wouldn’t want others to know or have!

2. Use a WiFi card to connect your laptop or mobile device to the Internet if you are away from the office. These have been around for some time, are easy to use, and are affordable. Talk to your IT staff.

3. Wait until you get to the office. I know that this might be wishful thinking, but it may be your best option.

4. Talk to your IT department about policies that are in place to secure client’s data at rest and in transit. Is the data on your laptop encrypted (this won’t help with open WiFi spots but does help if your device is lost or stolen)? If the website you are connecting to starts with https: (NOTICE the S) then your transmission may be more secure, however there are no guarantees.

5. Secure your home wireless network, there are a number of sites on the Internet that provide guidance or ask your IT staff. Or you can wait for Google’s YouTube video.

Does connecting to an unsecured and unknown hotspot violate an attorney’s ethical obligations?

By Josh Headley, Discovery Engineer

You know that 100% pure orange juice you buy at the grocery store? The all-natural one, never from concentrate, that contains nothing but juice from the roundest hand-picked Florida oranges with the cutest dimples. The one that contains no preservatives, added sugar, or high fructose corn syrup. The one that always tastes consistent because, well, it’s simply liquefied oranges in a carton. You buy this type of orange juice, right?

Guess what? That citrusy staple of a healthy breakfast is the product of Predictive Analytics. Each orange has a profile containing 600 or more individually-identifiable flavors. Multiple varieties of oranges must be mixed in order to create a consistent flavor profile that is both favorable to consumers and which synchs with the 3-month orange growing season. If the perfect OJ blend contains 10 varieties of oranges, this is about 6,046,617,600 (with 18 more zero’s) possible combinations of flavors. Even with only 3 different orange varieties in the mix, you’re looking at 216,000,000 combinations. What focus group could possibly sit down and sample all the combinations? Talk about acid reflux.

To solve the problem, Coca-Cola’s Minute Maid brand uses predictive analytics to dynamically model their formula based on the input from everyday orange juice drinkers like you. Think of yourself as an orange juice subject matter expert (SME). Using a pint glass and bendy-straw, you meticulously categorize various combinations of orange juice mixtures based on their taste. Then, the system thinks for a minute and presents you with another group of combinations to evaluate. This continues until the application is satisfied that doing more testing will not result in a much more perfect flavor profile. Drink up.

Of course, this same process can be applied to legal discovery. An orange juice SME (attorney) examines samples of orange juice (documents) and evaluates them based on desirability (relevance.) The application uses this knowledge to create increasingly more meaningful tests that will help it eliminate flavors (concepts) that are undesirable (not relevant.) Just as you wouldn’t use a legion of attorneys to examine every single document in a set of 216,000,000, Coke doesn’t employ humans to examine every single possible combination of flavors in a bin of oranges. Even if they did, the probability that the orange juice SME’s would be able to replicate these same decisions over and over again (review consistency) is essentially zero.

So tomorrow morning after you quench your thirst with a tall glass of pulpy goodness, think about all of the oranges that made the ultimate sacrifice in the spirit of predictive analytics!