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Data in a lawsuit is increasingly taking on vastly different forms. As our CEO AJ Shankar was recently quoted, “Lawyers need [great software] more than ever. They’re managing an explosion of data in litigation—not just email, but text messages, instant messages, social media, and corporate messaging tools like Slack.”
Issues arising from data diversity unfold in the litigation world every day. In an employment lawsuit where a former employee allegedly stole confidential client information from his employer, the Plaintiff opposed producing a corporate video, emails, and text messages in discovery. All of these data formats are vastly different, but this case highlights how all can appear in a lawsuit.1
The Video Requests for Production
The Defendant, a former employee, sought a recording of the Plaintiff’s former CEO that was broadcast to approximately 12,000 people. The CEO purportedly “threatened to ruin the life of and bankrupt, anyone that he feels violated the mutual Trade Secret Agreement.” The Plaintiff, without disputing the existence of the video, objected to the discovery request, claiming the video could not be found. The Court held that if the video existed, it needed to be produced. If the video did not exist, the Plaintiff needed to submit an affidavit that the video could not be found, listing the steps taken to locate it.
Collecting and Transcribing Audio in Everlaw
Had they been using Everlaw’s review tools, the Responding Party would have had several options for responding to this discovery request. The first step would be to collect video files that had been broadcast to the company after the date of the Defendant’s termination. These files could then be uploaded to Everlaw. A synced audio transcript would be created automatically during processing of the videos.
Reviewing attorneys could search the transcripts for phrases included in the request for production. Responsive passages could be highlighted, allowing attorneys to focus their attention on that section of the video transcript. Notes can be added to specific timestamps to identify important passages.
The Communication Request for Production
The Plaintiff’s senior and upper level management had been enjoined from making disparaging remarks about the lawsuit, the Defendant, and the Defendant’s business. As such, the Defendant requested all email and text message communications for those affected by the injunctive relief. The Plaintiff objected to the request, claiming the messages did not exist, and further arguing the communications were protected by both the attorney-client privilege and work product doctrine.
The Court held that responsive non-privileged communications needed to be produced. If no responsive communications existed, an affidavit needed to be submitted explaining the steps taken to locate the information.
A New Dawn for Document Review
SolarCity Corp. v. Doria is an example of how multiple types of data can appear in a lawsuit. This case centered on a video file, emails, and text messages. That is just the tip of the iceberg. Electronically stored information in a case could have voicemails, messaging apps, and a variety of other data. The best advice for attorneys is to think of the possible types of data in your case, how it can be relevant, and any possible privileges that apply.
1SolarCity Corp. v. Doria, 2017 U.S. Dist. LEXIS 210493 (S.D. Cal. Dec. 21, 2017).
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