Electronic discovery is rapidly changing the way courts do business. If there’s anyone in the legal world who still thinks ediscovery isn’t absolutely vital, here’s a few recent cases that should change your mind.
1. Oracle America v. Google
Oracle sued Google for alleged copyright infringement, stating that Google used Java programming language for its Android OS without obtaining licensing rights. Multiple emails were gathered through ediscovery and presented to the jury during arguments, including one from a chief engineer for Google which suggests negotiating a license from Java. Another email revealed that Google bigwigs requested that he research an alternative OS which was similar to Java.
2. State of Oregon v. Urbina
In this sexual assault case, the defendant was convicted of multiple sexual offenses. The defendant used computer software which allowed him to search for child pornography files and download them from a peer-to-peer filesharing network online. Although the defendant attempted to delete the incriminating evidence from his home computer, forensic software was able to find not only evidence that he attempted deletion, but also remnants of the pornography files themselves.
3. Danny Lynn Electrical v. Veolia Es Solid Waste
In this case, the plaintiff asked for sanctions against the defendant, stating the defendant had "blatantly disregarded their duty to preserve electronic information" because they had deleted pertinent emails after litigation had already begun in order to avoid ediscovery. The plaintiff additionally stated that the defendant had failed to properly maintain electronic records prior to litigation. As it turns out, the defendant was vindicated upon proving to the court they had recently implemented an email archiving system which automatically recorded and preserved all emails. The court ruled that there was insufficient proof to back the plaintiff's claim of evidence spoilation.
4. Northington v. H & M International
During these proceedings, the court issued an adverse inference instruction to the jury regarding destruction of emails and other relevant data. This evidence destruction occurred because ediscovery procedure regarding collection, identification, and preservation of pertinent data was not followed properly. Since several key documents were never found, the jury was instructed to presume that the company had destroyed the evidence.
5. United States v. Briggs
Through the U.S. Government produced thousands of pages of ediscovery in this criminal drug case, none of it was text searchable. The defense argued that presenting evidence in this manner made it nearly impossible for them to navigate, let alone mount any reasonable arguments. The court, in agreement with the defense, ordered the plaintiff to absorb the cost and time necessary to produce searchable materials for all parties instead
The many faces of evidence
Ediscovery is not just about finding supporting evidence which is used to prove or disprove a case; the electronic discovery process can also reveal if evidence has been destroyed or is missing. Sometimes the lack of evidence is just as elemental in winning a case as the evidence itself. The magic of ediscovery is that it addresses both sides of the evidence coin, while case histories are simultaneously building new guidelines regarding the responsibilities of companies to maintain proper electronic records.
With ediscovery moving front and center into standard litigation methods, an increasing number of corporations are starting to be proactive about the possibility of future data mining. There are several private programs out there which can keep records of company communications, but they tend to be cost-prohibitive for small and midsized businesses. Recently, Google has released a cloud option which is less costly than other programs and may put ediscovery 
“insurance” within the financial means of smaller organizations. Yet is Google Vault really the perfect answer it seems to be on the surface?
About Google Vault
Google Vault is designed to keep an inviolable record of emails and IM conversations which cannot be altered from the user end. Although individuals may delete their own records, the original interaction will be preserved by Vault in its unaltered form, safely stored for potential future ediscovery needs. This cloud-storage based solution seems like a great idea initially. However, when looking a bit deeper, the complications of Google Vault become rapidly apparent.
Compatibility issues
The primary problem with Vault is that it is proprietary, and only works with other Google apps. This means that in order for Vault to be truly effective, a business would have to require that all employees use Google’s email applications, documents, and IM chat system. This means mandatory compliance with all the glitches and bugs which are already inherent in those apps, regardless of how many superior alternatives are out there. Using Google’s products alone may be overly restrictive for the needs of the typical business; their potential will be capped by the limitations of Google’s latest gadgetry.
Learning curves
Since many business already use an internal email structure, shifting all communications to Google is a complicated prospect. For those not already using Google’s products, the changeover to the Google Vault ediscovery system will not be cost-effective. Employees will be forced to use apps which they may be unfamiliar with or reluctant to use; the learning curve will hamper productivity.
Improper or inconsistent use of Google products will result in patchy record-keeping, rendering the whole system ineffectual.
Enforcement problems
In order to ensure the usefulness of Vault, companies would need to not only require all employees use Google products, but also place set policies and guidelines in place to ensure they are being used properly. Not only that, but they will need some sort of accountability tracking in place in order to determine, in the case of ediscovery, that the policies and procedures were being followed correctly at all times.
Additional limitations
The proprietary nature of Vault neglects to take into account the many informational tributaries that exist. Vault offers no protection for documents used in non-Google systems, let alone any documents used offline. Let’s face it: it’s a pretty rare operation that uses one lone platform to accomplish all the nuances of their daily business. Additionally, the per-user pricing structure makes Vault absurdly expensive for larger companies.
Unanswered questions
Finally, many questions regarding the possible pros and cons of Google Vault remain unanswered. For example, if ediscovery is invoked, how will the documents and other information be retrieved from the Vault in any kind of organized fashion? How powerful are its search and retrieve functions? Above all, will Vault records be able to reveal one of the most important elements in litigation: who had what documents, what did they know, and when? Until these questions have satisfactory answers, we think the idea of Vault for ediscovery is a no-go.
Strong Demand Leads to Major Growth of TERIS Bay Area’s Professional Services Team
Dedicated Team of Legal, IT, eDiscovery and Operational Experts Deliver High Level of Project Management to TERIS’ Clients.
May 1, 2012 – San Francisco - Leading eDiscovery support firm TERIS announced today that exceptionally strong demand for its Professional Services team has led to significant staffing level growth and infrastructure investments.
Designed to serve enterprises and law firms, TERIS Bay Area’s Professional Services team offers expert guidance at every point in the eDiscovery or litigation process, and delivers the following key benefits to its clients:
- Early Case Assessment: the Professional Services team provides counsel with solid information about volume and substance of data when engaged in 26(f) or Meet and Confer with opposing counsel. This provides savings of both time and money and enables clients to estimate eDiscovery costs accurately and early in the process.
- Consistent Solutions: the Professional Services team works closely with clients to build consistent solutions to complex eDiscovery problems, enabling them to benefit from consistency across matters, the expediency of tracking tools, expert guidance, standard procedures, and efficient workflow.
- Repeatable Processes: the Professional Services team rigorously documents both processes and workflows so that clients can efficiently duplicate them in subsequent matters.
- Defensible Advice: the Professional Services team’s full-time staff of former attorneys, paralegals and seasoned eDiscovery professionals works closely with outside counsel to ensure that existing legal guidelines are met in all cases.
- Flexible Offerings: the Professional Services team consistently exceeds client expectations and responds quickly and flexibly to changing requirements.
- Cost-effectiveness: the Professional Services team helps clients make the best choices for cost management and optimization, thus empowering them to leverage eDiscovery costs for the best possible use.
“TERIS Bay Area’s Professional Services team is an entirely new way of providing a higher level of project management in the eDiscovery space,” commented Kevin Brooks, TERIS Bay Area’s Executive Vice President. ”Traditionally, in litigation support firms, project management is delegated to technical or sales professionals who, while skilled in their own right, lack the knowledge, experience and CRM resources to provide high level project management. However, our Professional Services team solves this critical service gap. Through our team, clients get the dedicated, value-added project management support they want and need.”
“What sets our team apart is that we’re not one-dimensional,” added Meghan Brosnahan, TERIS Bay Area’s Director of Enterprise Solutions and Manager of the Professional Services Team. “We know and understand technology, law, tools and the nuts and bolts of implementation. And most importantly, we know how they should all work together to benefit our clients.”
TERIS Bay Area’s Professional Services team, which operates out of four west coast offices, is expected to continue growing throughout 2012.
For more information or media inquiries, contact David Kaufer at 206.262.7302 or David.kaufer@KauferDMC.com
About TERIS
Founded in 1996, TERIS is one of the nation's leading litigation support firms, providing sophisticated eDiscovery and related legal support solutions to corporate legal teams and law firms across the U.S. and internationally. The company has offices in Seattle, San Francisco, Silicon Valley, San Diego, Phoenix and Austin.
To learn more about TERIS, visit TERIS.com or follow the company on Twitter at www.Twitter.com/DiscoverTERIS or Facebook at www.Facebook.com/DiscoverTERIS.
e-Discovery in a New World:
The Ethical Implications of Social Media
Social Media's Explosive Growth
In December 2011, Facebook had over 800 million active users. By the end of 2012, they'll have over a billion. Twitter is estimated to have around 140 million active users, with growth to 250 million expected by year-end.
With such a rapid incline in the popularity of these new technologies, social media discovery has become a more frequent topic in the world of e-discovery - and along with that come a number of ethical questions.
Ethical Use of Social Media Data
Lawyers have been mining for data since the profession began - that's nothing new. However, the ease with which information can now be gathered through social media discovery is uncharted territory, as are the methods that can be used to access this information.
Has easy access blurred the line between acceptable and invasive discovery tactics? Where is the ethical boundary?
Even the courts are grappling with this issue. There are judges who have ruled that a private Facebook profile, which can be accessed only by other Facebook members to whom one has given permission, bears a reasonable right to privacy and is exempt from social media discovery. On the other hand, some judges have ruled that such use is fair game, since these social media platforms are part of the Internet, and the Internet is public space.
Our newest whitepaper, "Ethical Implications of Social Media Discovery," examines issues that legal professionals should consider when it comes to ethics and social media, including:
- Admissable Use and Facebook
- Social Media as Surveillance
- Social Media Discovery Precedent Cases
Learn more about the current state of ethics in social media. To obtain your FREE copy of our whitepaper, please click here.
San Francisco, CA - April 13, 2012 - Leading eDiscovery support firm TERIS announced that it has promoted Discovery Consultant Meghan Brosnahan to the role of Director of Enterprise Solutions.
In this role, Ms. Brosnahan is responsible for overseeing all of TERIS Bay Area’s corporate clients, and working directly with them to develop best practices that streamline the eDiscovery process, reduce risk and lower costs. Ms. Brosnahan is also responsible for managing the firm’s Professional Services team, which has grown six-fold since launching in 2011 and is now one of the largest such teams in the country.
“Meghan has been instrumental in building TERIS’ enterprise solutions,” commented Kevin Brooks, Executive Vice President of TERIS Bay Area. “Thanks to Meghan’s extensive knowledge of the eDiscovery process and her strong IT, legal and project management background, we’ve grown accounts and delivered even more value to our clients. For example, Meghan recently worked with a large client that faced extensive and ongoing litigation obligations, and she developed a streamlined and customized approach to manage their information. As a result of her leadership and hard work, the client has measurably lowered their costs, increased efficiency and reduced risk.”
Ms. Brosnahan, who earned her JD from Cornell Law School, has also been tapped to spearhead TERIS Bay Area’s initiative to standardize its internal processes and procedures, so that all team members are working in a consistent and efficient manner.
“Working with the TERIS team has been incredibly rewarding,” commented Ms. Brosnahan. “It’s inspiring to be part of such a competent team with a consistent focus on performance, results and the best possible client service. I look forward to helping us consistently deliver measurable value to our clients, and taking TERIS to the next level.”
For more information or media inquiries, contact David Kaufer at 206.262.7302 or David.kaufer (at) twelve23.com
About TERIS
Founded in 1996, TERIS is one of the nation's leading litigation support firms, providing sophisticated eDiscovery and related legal support solutions to corporate legal teams and law firms across the U.S. and internationally. The company has offices in Seattle, San Francisco, Silicon Valley, San Diego, Phoenix, Austin, Dallas, Houston and Chicago. To learn more about TERIS, visit TERIS.com or follow the company on Twitter at www.Twitter.com/DiscoverTERIS or Facebook at www.Facebook.com/DiscoverTERIS.
By Chris Bright, Legal Hold Pro
Legal Hold Pro, a TERIS partner, is hosting a CLE program on Thursday, May 17, in New York City for attorneys and e-discovery professionals to get the very latest information on best 
practices for data preservation. ‘Four Perspectives on Preservation and Proportionality: The Judge, The GC, Plaintiffs’ Counsel and Defense Counsel’ will provide and update and lively discussion on how to meet the higher preservation standards of the courts while also mitigating risk and reducing costs.
The program, being held at the historic New York City Bar Association Building in Mid-town Manhattan, features a distinguished panel:
- Hon. James Francis (U.S. Magistrate, S.D.N.Y)
- Lynn Dummett (SVP and Sr. Counsel, Allianz Global Investors)
- William Butterfield (Partner at Hausfeld LLP)
- Robert Owen (Partner, Sutherland Asbill & Brennan)
The panel will be moderated by Hon. Ronald Hedges, a former U.S. Magistrate Judge and frequent presenter nationally on e-discovery issues. Read complete bios of the presenters here.
During the 90-minute presentation, Judge Hedges will lead the panel in discussion including the following topics:
- What should parties be doing before litigation arises in order to mitigate cost and risk?
- A look at potential updates to the FRCP that specifically address preservation
- What does ‘proportionality’ mean in today’s legal environment?
- Review the SDNY Pilot Program designed to improve e-discovery
- How can law firms become more engaged in their clients’ preservation?
The program is complimentary, but registration is required and seating is very limited, so reserve your seat now by clicking this link. We expect this program to be completely full.
EVENT DETAILS
- Date: Thursday, May 17, 2012
- Time: 8:30 to 10:00 a.m.
- Location: New York City Bar Association Building, 42 W. 44th Street, New York, NY 10036
- Cost: Complimentary, but registration is required and space is limited
- CLE Credit: Pending for New York
- Registration and more information
Please email Legal Hold Pro at events@legalholdpro.com or call 1-888-376-0666 if you have any questions. We look forward to seeing you in New York in May.
TERIS is a proud sponsor of the following event:
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Join us on April 24 at 1:00 EDT for a complimentary webinar presentation to discuss legal and technological issues regarding electronic search, e-discovery and the recent focus on the use of computer-assisted review.
 Hear from some of the top educators including Judge John M. Facciola, Michael Arkfeld and Scott Kane, who will also be instructing at the eDiscovery and Digital Evidence Conference and Symposium to be held on May 23-25, 2012 at the Sandra Day O'Connor College of Law at Arizona State University, located in Tempe, Arizona.
In "The Law of Search Meets Computer-Assisted Review" webinar the instructors will focus on:
- The law of search - reasonableness, search protocols, and cooperation
- Types of computer-assisted search - keyword, concept, and predictive coding
- Search protocol - iterative process, work product issues, sampling and defensibility considerations
- Importance of using computers to search - reduced costs, FRE 502 and clawback agreements
- Impact of the Da Silva Moore v. Publicis Groupe case
Click here to register for this complimentary webcast!
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San Diego, CA – April 9, 2012 - Leading e-Discovery support firm TERIS announced that it has promoted Andrew Bayer, Senior Account Representative, Sophisticated Litigation Support, to the role of Regional Director, Electronic Sales.
In his new role, Mr. Bayer is responsible for directing high-level ESI sales to corporations and law firms in San Diego and throughout the Southern California region.
“Andrew’s expertise in the area of project management and strategy development, as it relates to data management, ESI, and e-Discovery within the litigation support industry, has provided immense benefits to TERIS and our clients,” noted Patrick Conolly, Managing Partner of TERIS San Diego. “Thanks to Andrew’s extensive knowledge in this area, TERIS clients have access to the most cost-effective and time-efficient methods and solutions for handling all of their e-Discovery-related needs.”
At TERIS, Andrew has handled large, detail-intensive e-Discovery matters starting with collections through processing for many AM Law 100 firms, international corporations, and government agencies and contractors.
Mr. Bayer, who earned his BS from Villanova University, has been employed with TERIS since 2005.
“Being part of a dynamic team that is so focused on performance, results, and client service is an amazing opportunity,” commented Mr. Bayer. “I look forward to sharing my skills and expertise with the Business Development team as we work together to take TERIS to the next level.”
About TERIS
Founded in 1996, TERIS is one of the nation's leading litigation support firms, providing sophisticated eDiscovery and related legal support solutions to corporate legal teams and law firms across the U.S. and internationally. The company has offices in Seattle, San Francisco, Silicon Valley, San Diego, Phoenix, Austin, Dallas, Houston and Chicago. To learn more about TERIS, visit TERIS.com or follow the company on Twitter at www.Twitter.com/DiscoverTERIS or Facebook at www.Facebook.com/DiscoverTERIS.
Media Contact: David Kaufer, twelve23 (206.659.1495); David (at) twelve23.com
Seattle, WA – APR 04, 2012 – TERIS announced today that it has joined Exterro’s partner network to deliver the most complete, unified e-discovery platform to its corporate clients. As the first litigation services provider to offer the full Exterro Fusion® e-discovery software suite, including the advanced data management capabilities in Fusion Zeta™, TERIS is enabling its corporate clients to realize immediate ROI with integrated workflow, project management, and cost management capabilities across the entire EDRM.
“TERIS has seen increased demand from our corporate clients for an integrated, all-in-one e-discovery and information governance software platform. As an Exterro partner, we now deliver the most complete e-discovery suite directly to the source, eliminating the need for transferring of electronic evidence across multiple, disparate point solutions. The integrated approach presents tremendous cost savings, process efficiencies and risk reduction opportunities for our clients,” said Peter Sternkopf, Chief Technology Officer of TERIS.
TERIS provides e-discovery services and technologies that enable clients to assess their cases quickly and accurately. Exterro Fusion delivers a 360-degree view into the critical data and workflows required for defensibly and cost-effectively managing e-discovery, from identification, legal hold and in-place early case assessment (ECA) to collection, processing, analysis, review and production. With Exterro Fusion added to its full suite of services, TERIS now delivers the increased control and visibility required for defensibly managing all e-discovery tasks through a single, unified central command center.
“For many corporations, e-discovery remains a fragmented process. The addition of Exterro Fusion® to TERIS’ litigation service offerings will enable corporate legal teams to significantly drive down their legal costs in one, unified approach,” said Chad Smith, Director of Service Partnerships at Exterro. “We look forward to working with TERIS as a strategic partner, helping our clients tackle the complex challenges posed by ever-changing litigation requirements.”
ABOUT TERIS
Founded in 1996, TERIS provides legal support and sophisticated eDiscovery and Information Governance solutions to corporate legal teams and law firms across the U.S. and internationally. TERIS’ staff of almost 300 was named one of the top 20 eDiscovery service providers in 2008 by industry researcher Socha-Gelbmann. The company has offices in Seattle, San Francisco, Silicon Valley, San Diego, Phoenix, Austin, and Dallas. To learn more about TERIS, visit TERIS.com or follow the company on Twitter at Twitter.com/DiscoverTERIS or Facebook (Facebook.com/TERIS).
ABOUT Exterro
Exterro, Inc. is the pioneer and leading provider of workflow-driven e-discovery software for corporations and law firms. The proven Exterro Fusion® platform delivers a 360⁰ view into the critical data and workflows required for defensibly and cost-effectively managing e-discovery across the EDRM spectrum. The innovative suite of e-discovery applications built on the Fusion platform unifies all phases of e-discovery – from identification, legal hold and early case assessment (ECA) to collection, processing, analysis, review and production. Fusion’s open architecture integrates seamlessly with existing business processes and enterprise infrastructures. To learn more, visit www.exterro.com.
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Media Contacts:
David Kaufer, Partner, twelve23, 206-659-1495 or David.Kaufer(at)twelve23.com
Andrew Bartholomew, Exterro, 503-501-5133 or andrew.bartholomew@exterro.com
Getting terminated from a job is never fun, even if the job is horrible. Typically dismissals happen over routine events such as an employee constantly being late or not doing the job well enough. But there are cases where employees have lost their jobs over crazy (and even funny) circumstances.
We're now hearing about people getting fired over Facebook or even wearing a certain colored shirt! It seems we've seen more unusual termination cases recently so we thought we'd highlight six that caught our attention:
Recently, several staffers at a Florida law firm found themselves in a predicament when they were fired for wearing orange shirts. ABA Journal talked about it and the employees say they all wore orange so they could find each other in a group after work during Happy Hour. One commenter said the manager was probably a Seminole fan and not a big Gator fan.
Jeffrey Cox, a lawyer in Indiana, was fired from his position during the heated union battles in Wisconsin after he told riot police in Wisconsin to use "live fire," and other controversial commentary. Of course, his profile was set to public and his tweets could be easily found, as the blog Going Paperless wrote about. Remember: think before you tweet!
Another employee termination story that grabbed headlines (and was also because of Twitter) was the case of Connor Riley getting fired immediately after being offered a job with Cisco. She went to her Twitter to tweet about the job offer with some added snark of a "fatty paycheck," and hating the work. Of course, Cisco happens to be a tech company so they monitored Twitter, saw her tweet and she immediately found herself jobless again.
The Next Web reported on the story of a woman, Vicki Walker, being terminated from her job as an accountant in New Zealand after she constantly wrote her emails and messages in all caps, bright red font, and usually in bold. However, The Employment Relations Authority found that Walker was wrongfully fired and her employer had to pay a hefty fine. Still, not writing in all caps with bold and bright font should probably be a unwritten rule in the work place.
Marion County Juvenile Magistrate Danielle Gregory in Indianapolis, Indiana found herself fired after texting while hearing cases, according to local Indiana's WTHR. Smartphones and camera phones are banned in the courtroom, but that didn't stop Gregory from texting about court hearings and she even was texting a married male co-worker while on the clock.
Another case of a Facebook firing occurred when a juror in a British court was asking for help on a case on her Facebook page, as reported by The Telegraph. The court was given an anonymous tip about her Facebook mishap and the woman was immediately removed from the jury. Ouch!
It goes without saying that in the professional world, common sense should rule when it comes to knowing what's right and wrong. But as you can see, people are not always predictable creatures and as such, we'll always have interesting employment termination cases.