The Modern Archivist

Google Glasses Rumors For Real?

By Benjamin Lee

Rumors are out that Google has been developing a set of glasses that could take the place of smart phones. Users would be able to do everything they could on a smart phone— surf the web, email, text, make calls, and utilize social media! However, instead of using their hands, users would employ a series of head tilts and flicks to control the mouse and display. In addition, a camera would be installed that could open up even more possibilities. Imagine peering at a restaurant and instantly seeing reviews, comments, and special deals offered online! Imagine walking through a crowd during rush hour and spotting that long lost friend you haven’t seen in years with the glasses’ facial recognition features! Imagine getting virtual GPS turn by turn directions to the destination you seek, without taking your eyes off the road!

These rumors point to the fact that more and more about our lives—where we go, who we see, what we do, etc. — are getting digitalized and stored. And as this information becomes more accessible and concrete, the need to archive this data becomes inevitable. The Google glasses will make it even easier to use email and social media, along with introducing even more unstructured data. If this information is generated on an employer’s clock, it will most assuredly need to be captured and turned into business intelligence. Just as the possibilities for the Google glasses become truly unlimited, the scope of enterprise archiving will need to grow in tandem.

To Preserve or Not to Preserve- Is that the Question?

By Alexander Gershon

After much fanfare, Judge McMahon of the Southern District of New York Federal Court upheld the lower court’s ruling in the case of Pippins v. KPMG LLP that the defendant, KPMG must preserve all hard drives that may be related to the case. How does this ruling affect future cases? It is important to first understand the basis of this case.
Audit Associates and Audit Associate Seconds, which worked in the KPMG Audit practice group, filed a class action against KPMG. They claim KPMG misclassified their employment to avoid paying overtime salaries.
KPMG was asked to preserve existing hard drives that may be relevant to the case. KPMG argued using the Proportionality Claim[1], that because the number of plaintiffs was so high, preserving all of this data would be unnecessarily expensive.
KPMG had to preserve any hard drive that could contain relevant information to this case and the “key players” in the case. “Relevant” could be interpreted as anything that could reasonably lead to other information that could have an effect on the case, and “key players” are anyone who is likely to have any discoverable information that may be used to support claims of the defense or plaintiff. When these definitions were applied to the court’s view that any person who might opt into the class action would be a potential plaintiff which meant that their data would also have to be preserved. One can readily see how the costs of preservation could potentially skyrocket. .
Yet the decision of Judge McMahon, and the lower court, was a rejection of this proportionality claim on the basis that the court could not conduct an accurate cost-benefit analysis since neither the cost nor the benefit of preservation had never been determined, even on a partial basis. Judge McMahon decided that he, alongside the plaintiffs, were never given adequate opportunity by KPMG to understand the costs or benefits of preservation thereby making the proportionality test impossible.
What does this mean for the future of eDiscovery? If you are a big-name company with a lot of data to preserve, an inexpensive and efficient means to preserve all of your data should be one of your top priorities. Additionally, the retrieval process must be fast enough for both sides to have ample opportunity to review it.

[1] The Proportionality Claim (or Proportionality Test) is a cost-benefit analysis in which the court weighs the cost of producing evidence against the benefit of producing it. This is done in order to limit the frequency or extent of discovery where the expense of it likely outweighs its benefit. What is interesting about this case is that this test is being applied to preservation and not production.

Hide the Matches!!

By Elle Byram. Esq., CEDS

While some destroy records through shred days (no names mentioned), others do it by burning technology. I presume that’s one way to try to ensure your data is destroyed. It’s also one way to ensure you will be sanctioned. Which is exactly what happened in Evans v. Mobile County Health Department, 2012 WL 206141.
Sandra Evans brought suit against her employer for reverse discrimination and retaliation. Plaintiff filed suit in November 2010 and was subsequently ordered in the spring of 2011 to retain all relevant electronic materials. In June or July of 2011, Plaintiff’s computer allegedly “crashed” and she was advised by the Geek Squad at Best Buy to just buy another computer. Despite her suit and preservation requirements, plaintiff chose to burn her computer. She did not transfer the contents from the old computer to the new computer she had purchased. And, she did not to mention in her deposition that she had burned her computer. Her rationale for burning the computer: she did not want anyone to access the confidential information she had on the computer. But who would when you are in the midst of a lawsuit?
In discovery, defendant learned that plaintiff had taken notes of the alleged discrimination and had other emails and materials as well. Plaintiff produced excerpts of her notes but not complete copies. Defendant repeatedly asked for the information to no avail. The reason for plaintiff’s failed production are now, of course, obvious.
The court gave little credit to plaintiff’s cries that she needed to protect her confidential information and did not seem to understand why protection such as burning a computer would be bad in the middle of a lawsuit. “Given that plaintiff knew enough about computers to know someone could access the information/data on her computer even though it had ‘crashed,’ the [Court] finds that plaintiff fully appreciated that she could have transferred the information from her ‘crashed’ computer to the new computer she purchased.” Id. at 12. The court determined that plaintiff’s “culpability is excessively high. After all, she burned her personal computer after she filed her lawsuit … and an order was entered by this Court that she take steps to preserve all relevant electronically-stored information in her possession.” Id. at 19.
As a result of her willful destruction of evidence, the Court ordered an adverse inference instruction – if plaintiff survived summary judgment – and was required to pay attorney’s fees and expenses for the defendant’s motion to dismiss as a result of the destruction. If plaintiff fails to pay up, her suit will be dismissed.