In Case You Missed It: eDiscovery and Education in 2022
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Matthew Verga is an attorney, consultant, and eDiscovery expert proficient at leveraging his legal experience, his technical knowledge, and his communication skills to make complex eDiscovery topics accessible to diverse audiences. A fifteen-year industry veteran, Matthew has worked across every phase of the EDRM and at every level, from the project trenches to enterprise program design. As Director of Education for Consilio, he leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.
From questions of intent, to challenging sources, to privacy concerns, 2022 has been another year of adaptation and evolution in eDiscovery
EDISCOVERY AND EDUCATION IN 2022
In October 2021, Consilio announced the creation of the Consilio Advanced Learning Institute, a center for thought leadership, research, and education drawing on internal and external experts. Over the course of our first full year, the Institute has published dozens of educational articles, practice guides, and whitepapers, totaling more than 100,000 published words.
Beyond written materials, the Institute has also been invited to present dozens of CLEs to law firms, corporations, and industry groups, enabling hundreds of practitioners to enhance their knowledge and skills while earning CLE credit. In addition, the Institute presented a two-day slate of CLE programs to hundreds more practitioners as part of Symposium, Consilio’s annual educational conference for clients.
Across these written publications and CLE offerings, certain trends became visible in 2022:
- Education on the fundamentals of eDiscovery – particularly regarding preservation, collection, and analytics – remain the most popular topics
- Data privacy issues and cybersecurity issues have grown significantly in popularity and importance as topics for educational focus
- Education about mobile device sources has waned in popularity, supplanted by desire for education about collaboration tools and other newer source types
These trends are also reflected in the notable cases discussed below and are likely to continue in 2023. Data privacy laws are multiplying, cybersecurity is growing more challenging, and new source types continue to appear as custodian behavior evolves.
Notable Cases from 2022
Consilio is ending 2022 with a final, public CLE, on December 15th from 1:00-2:00 PM ET, featuring a panel of expert practitioners discussing notable cases from across the year. You can view the event here. Here is a preview of the notable cases that will be discussed.
Intent to Deprive and Adverse Inferences
Parties and courts alike continued to wrestle this year with questions related to spoliation and the sanctions for it. How much evidence of intentionality is required under FRCP 37(e)(2)? Should the determination be made by the judge or the jury?
Hollis v. CEVA Logistics U.S., Inc., 2022 WL 1591731 (N.D. Ill., May 19, 2022)
- In this employment discrimination action over termination following an alleged altercation, plaintiff moved for an adverse inference jury instruction due to employer’s failure to preserve video recordings from three security cameras aimed at the area of the alleged altercation. The court found that the defendant failed to take reasonable steps to fulfill its duty to preserve relevant ESI that cannot be restored or replaced, resulting in prejudice to plaintiff. The court opted to give a permissive instruction giving the jury the option of finding intent or not and assuming unfavorability or not.
- In reaching this decision, the court focused on the difficulty of differentiating intentional misconduct from incompetence – even in a situation like this one involving a “cavalier failure to take [] steps – in the face of explicit and repeated requests from a terminated employee.”
- “. . . the Court is a believer of Hanlon’s Razor. . . . Humans are just as likely to be dimwitted as they are dastardly.”
Alabama Aircraft Industries, Inc. v. Boeing Company, 2022 WL 433457 (11th Cir. 2022)
- This trade secret and breach of contract case was on appeal/cross-appeal over multiple issues, including the application of an adverse inference instruction that had been given regarding the deletion of relevant emails from the most important custodian. The Eleventh Circuit concluded that there was sufficient evidence in the record to “easily support[] the district court’s finding of bad faith in this case” and that “the court could have
- Key facts included:
- Deletion of the emails was carried out by two employees with clear knowledge of what to do/not do
- Deletion of the emails required a two-step process (“suggesting purposeful action rather than an inadvertent mistake”)
- Deletion of the emails was followed by an email to legal lying about the presence of relevant materials imposed an even harsher sanction.”
Possession, Custody, or Control of Text Messages
Another area of ongoing concern in 2022 was the question of relevant text messages contained on employees’ personal mobile devices. Does possession, custody, and control extend to messages on personal devices? What steps are companies obligated to take to preserve and collect such messages?
In re Pork Antitrust Litigation, 2022 WL 972401 (D. Minn. Mar. 31, 2022)
- In this class action litigation, plaintiffs sought an order compelling defendant to produce potentially-relevant text messages from the personal devices of its employees. The court discussed the jurisdictional split between the legal right and practical ability standards but concluded that “regardless of the standard applied” the plaintiffs had not established that defendant had “control over text messages on the personally-owned phones of its employees.” In reaching this conclusion, the court assessed three potential bases for control: policy, practice, and relationship.
- Policy: BYOD policy doesn’t claim ownership or control of texts (just data from the company’s systems like email, contacts, etc.)
- Practice: MDM is required, but doesn’t restrict or control texts; can only delete them as part of a full wipe of the phone
- Relationship: No requirement to use text messaging for work; no evidence of defendant accessing text messages as a part of the ordinary course of business
- Although the court denied the motion to compel the defendant, it did allow subpoenas directly to the custodians but with scope narrowed and costs borne by the parties rather than the custodians.
La Belle v. Barclays Capital Inc., 340 F.R.D. 74 (S.D.N.Y. Jan. 13, 2022)
- In this SOX unlawful retaliation case, the plaintiff moved for spoliation sanctions on three grounds, one of which was failure to preserve alleged relevant text messages on two employees’ personal phones. The defendant had a policy against using personal devices for business communications, but some employees had not followed that policy. The court concluded that “[w]hile it is a close question, we are not prepared to find that [defendant] acted unreasonably in assuming that its employees complied with such a policy.”
- “But in light of the enormous demands that discovery places on any party, we do not find that [defendant] acted unreasonably in assuming the policy was followed and limiting its document search to company-issued devices until the issue was brought to its attention.”
This will continue to be an important issue in 2023. A September 15th DOJ Memo from Deputy AG Monaco, reemphasized the importance of addressing employee use of personal devices for compliance and preservation purposes and indicated additional guidance on the subject would be coming in the future.
- “How companies address the use of personal devices and third-party messaging platforms can impact a prosecutor’s evaluation of the effectiveness of a corporation’s compliance program, as well as the assessment of a corporation’s cooperation during a criminal investigation.”
Discovery from Slack
Parties in 2022 continued to struggle with preserving and collecting from newer sources like Slack. Is novelty an acceptable excuse for spoliation? Is Slack still actually novel?
- In this case fraught with discovery disputes and failures, plaintiff eventually sought default judgment as sanction for “defendants’ repeated failure to produce required Slack communications.” Although the defendant’s attorney had found a vendor who could assist, defendant did not disclose this to the court and elected instead to hire a programmer with no Slack experience “to write a program to search and produce Slack messages.” After repeated failures to produce all relevant Slack messages and the threads in which they appeared, the court granted default judgment on all counts.
Authenticating Social Media Evidence
The story of social media authentication in the courts has long been a tale of two states: Maryland and Texas, who were the first states to address the issue at the appellate level. The Maryland rule set a higher bar for social media evidence to reach the jury due to its inherent untrustworthiness, while the Texas rule set no higher bar and treated social media evidence like other types. Currently, more states have opted to follow the Texas rule, and this year, the New Mexico Supreme Court added New Mexico to the list of Texas rule states.
State v. Jesenya O., 514 P.3d 445 (N.M. 2022)
- In this criminal case, the state sought to authenticate screenshots of social media communications using testimony and distinctive characteristics, which the defendant argued was insufficient to establish authorship and authenticity. The District Court admitted the evidence, the Court of Appeals reversed, but the Supreme Court agreed with the District Court:
- “Today we clarify that, in New Mexico, the authentication of social media evidence is governed by the traditional authentication standard . . . which requires the proponent to offer ‘evidence sufficient to support a finding that the [evidence] is what the proponent claims it is.’ We reiterate that, in meeting this threshold, the proponent need not demonstrate authorship of the evidence conclusively; arguments contesting authorship go to the weight of the evidence, not its admissibility.”
GDPR/FRCP Conflicts
Data privacy, too, has continued to be a topic of importance and an area of concern for practitioners in 2022. How can parties navigate the potential conflicts between their obligations under the GDPR and under the FRCP?
Arigna Technology Limited v. Nissan Motor Company, Ltd., 2022 WL 3020136 (E.D. Tex. Jul. 29, 2022)
- In this case, the defendant only produced a fraction of its ESI by the court’s deadline, and “what it did produce was overly redacted.” The defendant “argued that both the delay in production and the redactions were required by the European Union’s General Data Protection Regulation.” After a review of relevant case law, however, the court was not convinced by the general, unsupported assertions made by defendant’s counsel and ordered the defendant to pay a variety of related fees and costs.
- “Here, [defendant] does nothing more than simply argue that the extensive redactions are required by the GDPR and thus its noncompliance with the Order should be excused. However, [defendant] only provides attorney argument without evidence for the Court to weigh when determining whether to excuse its noncompliance. Therefore, the Court finds [defendant] has no excuse for its excessive redactions and untimely production.”
About Consilio Advanced Learning Institute
Launched by Consilio in October 2021, the Consilio Advanced Learning Institute is a center for thought leadership, research, and education for legal practitioners. The Institute draws on internal and external experts in forensics, eDiscovery, document review, legal technology, law department operations, and other subjects to provide free educational articles, papers, webinars, and more. Its operations are overseen by an interdisciplinary Steering Committee and led by Consilio Director of Education Matthew Verga. In addition to publishing original thought leadership, the Institute authors and delivers public webinars, as well as up-to-date CLE sessions for Consilio clients, and drives educational partnerships with key law firms, corporations, and higher education partners.
For more information, or to request a program, please contact your Consilio client representative or visit consilio.com/institute.
From questions of intent, to challenging sources, to privacy concerns, 2022 has been another year of adaptation and evolution in eDiscovery
EDISCOVERY AND EDUCATION IN 2022
In October 2021, Consilio announced the creation of the Consilio Advanced Learning Institute, a center for thought leadership, research, and education drawing on internal and external experts. Over the course of our first full year, the Institute has published dozens of educational articles, practice guides, and whitepapers, totaling more than 100,000 published words.
Beyond written materials, the Institute has also been invited to present dozens of CLEs to law firms, corporations, and industry groups, enabling hundreds of practitioners to enhance their knowledge and skills while earning CLE credit. In addition, the Institute presented a two-day slate of CLE programs to hundreds more practitioners as part of Symposium, Consilio’s annual educational conference for clients.
Across these written publications and CLE offerings, certain trends became visible in 2022:
- Education on the fundamentals of eDiscovery – particularly regarding preservation, collection, and analytics – remain the most popular topics
- Data privacy issues and cybersecurity issues have grown significantly in popularity and importance as topics for educational focus
- Education about mobile device sources has waned in popularity, supplanted by desire for education about collaboration tools and other newer source types
These trends are also reflected in the notable cases discussed below and are likely to continue in 2023. Data privacy laws are multiplying, cybersecurity is growing more challenging, and new source types continue to appear as custodian behavior evolves.
Notable Cases from 2022
Consilio is ending 2022 with a final, public CLE, on December 15th from 1:00-2:00 PM ET, featuring a panel of expert practitioners discussing notable cases from across the year. You can view the event here. Here is a preview of the notable cases that will be discussed.
Intent to Deprive and Adverse Inferences
Parties and courts alike continued to wrestle this year with questions related to spoliation and the sanctions for it. How much evidence of intentionality is required under FRCP 37(e)(2)? Should the determination be made by the judge or the jury?
Hollis v. CEVA Logistics U.S., Inc., 2022 WL 1591731 (N.D. Ill., May 19, 2022)
- In this employment discrimination action over termination following an alleged altercation, plaintiff moved for an adverse inference jury instruction due to employer’s failure to preserve video recordings from three security cameras aimed at the area of the alleged altercation. The court found that the defendant failed to take reasonable steps to fulfill its duty to preserve relevant ESI that cannot be restored or replaced, resulting in prejudice to plaintiff. The court opted to give a permissive instruction giving the jury the option of finding intent or not and assuming unfavorability or not.
- In reaching this decision, the court focused on the difficulty of differentiating intentional misconduct from incompetence – even in a situation like this one involving a “cavalier failure to take [] steps – in the face of explicit and repeated requests from a terminated employee.”
- “. . . the Court is a believer of Hanlon’s Razor. . . . Humans are just as likely to be dimwitted as they are dastardly.”
Alabama Aircraft Industries, Inc. v. Boeing Company, 2022 WL 433457 (11th Cir. 2022)
- This trade secret and breach of contract case was on appeal/cross-appeal over multiple issues, including the application of an adverse inference instruction that had been given regarding the deletion of relevant emails from the most important custodian. The Eleventh Circuit concluded that there was sufficient evidence in the record to “easily support[] the district court’s finding of bad faith in this case” and that “the court could have
- Key facts included:
- Deletion of the emails was carried out by two employees with clear knowledge of what to do/not do
- Deletion of the emails required a two-step process (“suggesting purposeful action rather than an inadvertent mistake”)
- Deletion of the emails was followed by an email to legal lying about the presence of relevant materials imposed an even harsher sanction.”
Possession, Custody, or Control of Text Messages
Another area of ongoing concern in 2022 was the question of relevant text messages contained on employees’ personal mobile devices. Does possession, custody, and control extend to messages on personal devices? What steps are companies obligated to take to preserve and collect such messages?
In re Pork Antitrust Litigation, 2022 WL 972401 (D. Minn. Mar. 31, 2022)
- In this class action litigation, plaintiffs sought an order compelling defendant to produce potentially-relevant text messages from the personal devices of its employees. The court discussed the jurisdictional split between the legal right and practical ability standards but concluded that “regardless of the standard applied” the plaintiffs had not established that defendant had “control over text messages on the personally-owned phones of its employees.” In reaching this conclusion, the court assessed three potential bases for control: policy, practice, and relationship.
- Policy: BYOD policy doesn’t claim ownership or control of texts (just data from the company’s systems like email, contacts, etc.)
- Practice: MDM is required, but doesn’t restrict or control texts; can only delete them as part of a full wipe of the phone
- Relationship: No requirement to use text messaging for work; no evidence of defendant accessing text messages as a part of the ordinary course of business
- Although the court denied the motion to compel the defendant, it did allow subpoenas directly to the custodians but with scope narrowed and costs borne by the parties rather than the custodians.
La Belle v. Barclays Capital Inc., 340 F.R.D. 74 (S.D.N.Y. Jan. 13, 2022)
- In this SOX unlawful retaliation case, the plaintiff moved for spoliation sanctions on three grounds, one of which was failure to preserve alleged relevant text messages on two employees’ personal phones. The defendant had a policy against using personal devices for business communications, but some employees had not followed that policy. The court concluded that “[w]hile it is a close question, we are not prepared to find that [defendant] acted unreasonably in assuming that its employees complied with such a policy.”
- “But in light of the enormous demands that discovery places on any party, we do not find that [defendant] acted unreasonably in assuming the policy was followed and limiting its document search to company-issued devices until the issue was brought to its attention.”
This will continue to be an important issue in 2023. A September 15th DOJ Memo from Deputy AG Monaco, reemphasized the importance of addressing employee use of personal devices for compliance and preservation purposes and indicated additional guidance on the subject would be coming in the future.
- “How companies address the use of personal devices and third-party messaging platforms can impact a prosecutor’s evaluation of the effectiveness of a corporation’s compliance program, as well as the assessment of a corporation’s cooperation during a criminal investigation.”
Discovery from Slack
Parties in 2022 continued to struggle with preserving and collecting from newer sources like Slack. Is novelty an acceptable excuse for spoliation? Is Slack still actually novel?
- In this case fraught with discovery disputes and failures, plaintiff eventually sought default judgment as sanction for “defendants’ repeated failure to produce required Slack communications.” Although the defendant’s attorney had found a vendor who could assist, defendant did not disclose this to the court and elected instead to hire a programmer with no Slack experience “to write a program to search and produce Slack messages.” After repeated failures to produce all relevant Slack messages and the threads in which they appeared, the court granted default judgment on all counts.
Authenticating Social Media Evidence
The story of social media authentication in the courts has long been a tale of two states: Maryland and Texas, who were the first states to address the issue at the appellate level. The Maryland rule set a higher bar for social media evidence to reach the jury due to its inherent untrustworthiness, while the Texas rule set no higher bar and treated social media evidence like other types. Currently, more states have opted to follow the Texas rule, and this year, the New Mexico Supreme Court added New Mexico to the list of Texas rule states.
State v. Jesenya O., 514 P.3d 445 (N.M. 2022)
- In this criminal case, the state sought to authenticate screenshots of social media communications using testimony and distinctive characteristics, which the defendant argued was insufficient to establish authorship and authenticity. The District Court admitted the evidence, the Court of Appeals reversed, but the Supreme Court agreed with the District Court:
- “Today we clarify that, in New Mexico, the authentication of social media evidence is governed by the traditional authentication standard . . . which requires the proponent to offer ‘evidence sufficient to support a finding that the [evidence] is what the proponent claims it is.’ We reiterate that, in meeting this threshold, the proponent need not demonstrate authorship of the evidence conclusively; arguments contesting authorship go to the weight of the evidence, not its admissibility.”
GDPR/FRCP Conflicts
Data privacy, too, has continued to be a topic of importance and an area of concern for practitioners in 2022. How can parties navigate the potential conflicts between their obligations under the GDPR and under the FRCP?
Arigna Technology Limited v. Nissan Motor Company, Ltd., 2022 WL 3020136 (E.D. Tex. Jul. 29, 2022)
- In this case, the defendant only produced a fraction of its ESI by the court’s deadline, and “what it did produce was overly redacted.” The defendant “argued that both the delay in production and the redactions were required by the European Union’s General Data Protection Regulation.” After a review of relevant case law, however, the court was not convinced by the general, unsupported assertions made by defendant’s counsel and ordered the defendant to pay a variety of related fees and costs.
- “Here, [defendant] does nothing more than simply argue that the extensive redactions are required by the GDPR and thus its noncompliance with the Order should be excused. However, [defendant] only provides attorney argument without evidence for the Court to weigh when determining whether to excuse its noncompliance. Therefore, the Court finds [defendant] has no excuse for its excessive redactions and untimely production.”
About Consilio Advanced Learning Institute
Launched by Consilio in October 2021, the Consilio Advanced Learning Institute is a center for thought leadership, research, and education for legal practitioners. The Institute draws on internal and external experts in forensics, eDiscovery, document review, legal technology, law department operations, and other subjects to provide free educational articles, papers, webinars, and more. Its operations are overseen by an interdisciplinary Steering Committee and led by Consilio Director of Education Matthew Verga. In addition to publishing original thought leadership, the Institute authors and delivers public webinars, as well as up-to-date CLE sessions for Consilio clients, and drives educational partnerships with key law firms, corporations, and higher education partners.
For more information, or to request a program, please contact your Consilio client representative or visit consilio.com/institute.
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