E-Discovery Cost Calculator App

There’s a new app for iPhones that will let you estimate the cost of electronic discovery projects on the fly. Batch Guru develops e-discovery tools for Relativity. It’s app is called E-Disccovery Project Calculator.

The basic inputs are for the data size (in GBs or TBs), a choice between email or electronic files, and an option for either tiffs or natives as the production format. Additional settings allow you to designate the number of reviewers, the data culling reduction percentage size, tiered pricing for culling and hosting, and the doc/page averages per GB.

The summary generated by the app will show totals for processing, review, and hosting.

Sedona Commentary on BYOD

Today the Sedona Conference posted the public comment version of its Commentary on BYOD: Principles and Guidance for Developing Policiesand Meeting Discovery Obligations. This guide to Bring Your Own Device policies revolves around the smartphones, tablets, and personal computers that employees use to access their company email accounts and documents. The Sedona Conference embraces five core principles:

1. "Organizations should consider their business needs and objectives, their legal rights and obligations, and the rights and expectations of their employees when deciding whether to allow, or even require, BYOD."

2. "An organization’s BYOD program should help achieve its business objectives while also protecting both business and personal information from unauthorized access, disclosure, and use."

3. "Employee-owned devices that contain unique, relevant ESI should be considered sources for discovery."

4. "An organization’s BYOD policy and practices should minimize the storage of––and facilitate the preservation and collection of––unique, relevant ESI from BYOD devices. "

5. "Employee-owned devices that do not contain unique, relevant ESI need not be considered sources for discovery."

With respect to the first principle, Sedona acknowledges that the cost of Mobile Device Management (MDM) may be prohibitively expensive and preclude the implementation of a BYOD program. Organizations should consider whether or not they will allow employees to withdraw consent to access data on their devices. Some employees will own devices shared with other individuals that may not want to give access to the device.

The implementation of a security program with respect to the second principle may require registration of employee devices that will allow for access logging and device tracking. 'Containers' or 'sandbox' partition can separate personal from organization data on a personal device. The Electronic Communications Privacy Act restricts access to personal communications on BYOD devices absent valid authorization.

With respect to Principle 3, the guide cites federal court decisions that organizations do not have possession, custody, and control over BYOD devices. Matthew Enterprise, Inc. v. Chrysler Grp. LLC, No. 13-cv-04236-BLF, 2015 WL 8482256 (N.D. Cal. Dec. 10,2015); Ewald v. Royal Norwegian Embassy, No. 11-CV-2116, 2013 WL 6094600, at *10 (D. Minn. Nov. 20, 2013). Sedona notes that requiring privacy waivers from employees may be inconsistent with local laws.

Google's Android for Work and AT&T's Toggle are cited by Sedona as good partitioning applications that help prevent the storage of business files on BYOD devices with respect to principle 4.

Under Sedona's understanding of principle 5 an email application that fully synchronizes with a company's servers, or a custodian interview that indicates an employee did not use a personal device for business may be a basis on which which forgo BYOD discovery.

Johnston v. Vincent - Sanctions for failing to keep an iPhone?

Yesterday the Louisiana Court of Appeals upheld a lower court’s denial of a motion for sanctions for the failure of a defendant to preserve data on an iPhone 4, in Johnston v. Vincent, 2017 La. App. LEXIS 2336, No. 17-391 (La.App. 3 Cir. 12/13/17), a suit for defamation and unfair trade practices.

The preservation order required the parties to prevent the destruction or alteration of any data in their work and personal email accounts as well as on their smartphones. One of the defendants conceded in a deposition that he had failed to retain an iPhone 4 containing relevant data. He was however able to produce some text messages from the time period he used this phone from a backup on his computer with an iPhone 5 he purchased later.

The plaintiffs forensic expert testified that all text messages from iPhone are backed up, even deleted ones, and the user has no way of controlling what is backed up. A file on the iPhone indicates when the back-up occurred. Emails cannot be collected from an iPhone for security reasons.

Judge Ulysses Gene Thibodeaux's opinion emphasizes that the primary purpose of the preservation order was to prevent the destruction or alteration of text messages in the relevant time period. He notes that:

"all the text messages from August 2014 through October 2014 sought by the plaintiffs in their motion to compel and ordered to be produced by the trial court should have theoretically been preserved in the Kiersted image of the backup of Mr. Vincent's iPhone 5 taken in November 2015. As defense counsel explained during his closing arguments on October 31, 2016, the defendants are producing, in spreadsheet fashion, text messages from this time period and all the way back to October 2013,from that image, albeit in a less than timely or forthcoming manner."

The court also stressed the importance of the fact that the plaintiffs could not prove the iPhone 4 existed at the time the preservation order was issued. It agreed with the trial court that the evidence did not show that the defendants had not been forthcoming, efficient, or effective in their discovery. Judge Thibodeaux did however find good cause for the appointment of a special discovery master who would be allowed to inspect, copy and test the image databases of both parties.

Interestingly, a footnote in the opinion quoted the plaintiff's attorney as stating that AT&T had agreed to provide them with text messages, and that it had the ability produce things that had been deleted from the phone.