In Pero v. Norfolk Southern Railway, Co., No. 14-cv-16 (E.D. Tenn. Dec. 1, 2014), the United States District Court for the Eastern District of Tennessee concluded that a party cannot use a video software license to block a party from obtaining relevant evidence. Pero, an employee of Norfolk, sued after he was injured while operating a locomotive. The train was equipped with a camera and recorded the events leading to Pero’s injuries. Pero moved to compel production of the video, which could only be viewed using a proprietary software program. Norfolk moved for a protective order, arguing that providing a copy of the video would exceed the scope of its software license. Norfolk took the position that Pero had to pay $500 to purchase his own license or Pero could view the video in Norfolk’s counsel’s office.
Exploration of Sophisticated Cloud Computing Abilities Unnecessary When Responding to Discovery Demands
A new decision out of the District of New Jersey holds that a company need not utilize its cloud-based comprehensive document search tools absent evidence that its standard custodian-based approach to data collection was deficient. In Koninklijke Philips v. Hunt Control Systems, a multi-billion dollar trademark dispute, defendant Hunt Control Systems, Inc. (“Hunt”) served plaintiff Koninklijke Philips N.V. (“Philips”) with discovery demands that included requests for production of electronically stored information (“ESI”). To prepare its response, Philips requested information from eight specific employees.
On May 6, 2013, the U.S. Department of Justice’s (“DOJ”) Antitrust Division approved Constellation Brands Inc.’s (“Constellation”) and Crown Imports LLC’s (“Crown”) request to use predictive coding to determine which documents were most relevant and responsive to the DOJ’s requests. Constellation is a potential buyer of assets from the huge AB InBev-Grupo Modelo merger, and Crown is a joint venture between Grupo Modelo and Constellation. Reportedly, Constellation and Crown identified in excess of one million documents that would require manual review before being handed over to the Justice Department for scrutiny. After several seed sets were run using the automated data review software and compared manually, DOJ was satisfied that the predictive coding software would identify the most relevant documents and approved its use. As reported by the Wall Street Journal, the predictive coding software used by the parties was developed by kCura Corporation, a software vendor for many entities including DOJ.
Update of Proposed Rule Changes: A Universal Federal Sanctions Standard for the Failure to Preserve ESI Could be a Reality
The United States Courts’ Advisory Committee on Civil Rules (“the Committee”) has proposed various amendments to the Federal Rules of Civil Procedure that, if adopted, will profoundly affect the range and scope of sanctions a court may impose for failures to preserve electronically stored information (“ESI”). F.R.C.P. 37(e), which currently addresses sanctions in those instances, is one of several rules slated for amendment.
The International Organization for Standardization (“ISO”) is forming a new e-discovery committee tasked with the development of standards for e-discovery processes and procedures. The international standard “would provide guidance on measures, spanning from initial creation of [electronically stored information] through its final disposition which an organization can undertake to mitigate risk and expense should electronic discovery become an issue” according to a draft committee charter.
Will developments in technology make lawyers more efficient or will they become extinct? A March 2011 article in The New York Times, entitled “Armies of Expensive Lawyers, Replaced by Cheaper Software,” discussed the significant efficiency and accuracy of e-discovery software in document review over that of human review. Although technology has enabled computers to imitate humans’ ability to reason at even higher levels, rest assured that Armageddon is not looming on the legal profession’s horizon.
New Jersey’s Appellate Division recently held in State v. Lyons, __ N.J. Super. __, 2010 N.J. Super. LEXIS 227 (App. Div. Nov. 30, 2010) that Defendant Richard Lyons’ placement of child pornography in a shared online folder constituted an offer and distribution of child pornography in violation of N.J.S.A. 2C:24-4b(5)(a). Lyons’ computers contained videos of children engaged in sexual activities, including one that a detective discovered and downloaded when he accessed a shared folder on Gnutella, a peer-to-peer file sharing network, accessible via LimeWire software program.
Technology and Legal Panel Addresses the Risks and Benefits of Cloud Computing at Gibbons Fourth Annual E-Discovery Conference
Cloud computing is revolutionizing the IT marketplace. With the economy still suffering aftershocks from the Great Recession, companies of all sizes are being pressured to consider cost-cutting strategies. One such strategy is migration to cloud computing services. The “cloud” provides a reasonable solution to reduce cost while at the same time, increasing efficiency and innovation in IT operations. On Thursday, October 28, 2010, Gibbons P.C. held its Fourth Annual E-Discovery Conference, assembling a panel of experts for a roundtable discussion concerning (i) what constitutes “cloud computing,” (ii) how cloud migration can be achieved, and (iii) what risks are posed by “cloud computing” and how to mitigate those risks.