eDiscovery Best Practices with Industry Expert Doug Austin | Episode 16

eDiscovery expert Doug Austin joins Ryan Kalamaya on Divorce at Altitude to discuss current issues and case law in electronic discovery, cybersecurity and data privacy, and best practices for protecting information for divorce lawyers. 

In This Episode: 

-       How can parties in a divorce try to modify, conceal or change digital evidence?

-       What happens if a party doesn’t disclose or produce certain evidence in a divorce?

-       Trends in case law for eDiscovery

-       Best practices in cybersecurity for divorce lawyers

About Doug Austin 

Doug Austin has over 30 years of experience providing eDiscovery best practices, legal technology consulting and technical project management service. He also authors eDiscovery Today, a daily blog for law professionals wanting to keep up with best practices and case law in eDiscovery, cyber security, and data privacy. Doug has also received the JD Supra Readers Choice Award as the Top eDiscovery Author for 2017 and 2018 and a JD Supra Readers Choice Award as a Top Cybersecurity Author for 2019.

Make sure to follow us to continue the conversation on Facebook, LinkedIn, and Twitter. 

What is Divorce at Altitude? 

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado. 

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos,

What is Divorce at Altitude?

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado.

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.

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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Transcript

Ryan Kalamaya:
Hey everyone. I'm Ryan Kalamaya.

Amy Goscha:
And I am Amy Goscha.

Ryan Kalamaya:
Welcome to the Divorce at Altitude. A podcast on Colorado Family Law.

Amy Goscha:
Divorce is not easy. It really sucks. Trust me, I know. Besides being an experienced divorce attorney, I'm also a divorce client.

Ryan Kalamaya:
Whether you or someone considering divorce or a fellow family law attorney listening for weekly tips and insight into topics related to divorce, co-parenting, and separation in Colorado.

Ryan Kalamaya:
Welcome back to another episode of divorce altitude. I am Ryan Kalamaya. This week we are continuing our journey on the e-discovery train, and we're joined by an expert, Doug Austin, in Texas. He's a thought leader with over 30 years of experience in e-discovery best practices, legal technology consulting, and a variety of other related issues. He publishes a daily blog, which is a must-read for any litigation or other lawyer professional in the divorce world. It's called eDiscovery Today. Doug, anything I missed, or do you want to introduce yourself beyond what I just covered?

Doug Austin:
Ryan, I think you did an excellent job. eDiscovery Today is my daily blog, ediscoveredtoday.com. All one word, no dashes. So hope people will check it out and excited to be here with you today.

Ryan Kalamaya:
Yeah, we're excited. So let's talk about some e-discovery we've already covered with Brett Burney, who I think you know about kind of the intro on e-discovery. How did you get into this industry?

Doug Austin:
I do know, Brett first off. And actually, he and I are doing a webinar next week. So I've worked with them quite a bit. So I actually got into e-discovery before there was a e-discovery. My original involvement was with what we used to call litigation support. And you could probably call it P-discovery because it was about paper all the way back in the mid-eighties. I worked for one of the... they were actually one of the big eight consulting firms at the time Price Waterhouse, and worked on a couple of different litigations with them, and then I've spent the better part of 21 and a half years with two companies in the litigation support. And then, eventually, as evidence became more and more electronic, it turned to do the term e-discovery that has become popular today and worked for basically 21 and a half years for two companies. And now have my company eDiscovery Today, which is blog, content generation, and consulting.

Ryan Kalamaya:
And you generally covered the trends and case law. I get it. And you're just constantly updating the newest case law from across the country with respect to e-discovery.

Doug Austin:
Yeah. I probably cover 65 to 70 case law decisions a year over a variety of considerations. Everything from sanctions requests to proportionality disputes, to other sorts of cooperation disputes, a lot of motions to compel and vows over that. So it's really... I think that e-discovery case law is probably one of the most relatable teaching tools for legal professionals because all legal professionals can relate to what courts say about how e-discovery should be handled. And so, as a result, I think that's one of the e-discovery case law posts that I do tend to be among the most popular year after year.

Ryan Kalamaya:
Well, let's dig in on some of those issues specifically related to family law. Before this show, you and I talked offline, and there's not a ton of case law across the country on family law, but it is, it does come up. So one issue I think that listeners would be interested in is frequently spouses going through divorce. There's a lack of trust, and it's always there hiding money. And what are the ways that parties in other cases that you've looked at that could be relatable to family law, where people are concealing digital evidence or trying to change anything related to e-discovery in a divorce or some issue that could be related to a divorce.

Doug Austin:
So I'm sure I don't have to tell you, Ryan, that family law is probably among the most emotionally charged types of cases out there. And as you mentioned, there are incidences where parties do try to hide evidence and so forth. And certainly, one of the things that I think has become really key is that a lot of the evidence is coming through what we all carry around these days, which is our mobile devices. And there's so much information there that's becoming irrelevant more and more in cases. Certainly text message discussions, whether it's between the two spouses that are looking to get divorced or maybe with other parties that may have impacted a potential divorce, that's evidence that's always relevant.

Doug Austin:
But people don't realize just how much other information that is tracked on mobile devices. Location information. People don't realize that your device is tracking everywhere you go, and that could become relevant in the case conceivably. Certainly, there's... people who are doing much more in terms of video files. You probably remember the Johnny Depp, Amber Heard case where that video became public of him that factored into their divorce case and so forth. So a lot of information now is available on the mobile devices, and those devices, especially in cases like family law, have become much more discoverable consistently.

Ryan Kalamaya:
One Case that you had covered in eDiscovery Today that I thought that really was thought-provoking for me was the case out of California, I think, it was, in producing Slack messages. And it reminded me, oftentimes in a divorce, there might be a business owner, and listeners to this podcast know that we have kind of this hypothetical couple Eric Wolf and Melanie, and they're going through a divorce, and Eric owns his own business. And it's pretty typical or common now with business owners to be communicating with his team, his bookkeeper over Slack. And he could say, "Hey, cook the books, or we got to change some deductions." So can you talk a little bit about what courts are doing in those circumstances or that case in particular that I think is certainly applicable, even though I think it was an employment case. What cases... what courts are doing with those kinds of e-discovery.

Doug Austin:
So that particular case, and I could look up the specifics, or people could come to eDiscovery Today and find the case because I just covered it, I think in the past two or three weeks, had to do with the relevance and the proportionality of Slack messages. And certainly, one of the things, if you think about it these days from a business standpoint, we obviously have email. But if you want to get ahold of somebody in a hurry, you don't do it typically through email anymore. You [inaudible 00:07:07] because we all get so many emails, they get lost in the shuffle. So you text them, or you send them a Slack message or whatever the case may be. Or, as you mentioned, sometimes you want certain communications to be kind of funneled in a different way.

Doug Austin:
So those chat apps are becoming much more discoverable, much more routinely. And in that particular case, because Slack actually provides some utilities and capabilities to make discovery of the messages easier. The court said those really... the discovery of chat messages through Slack isn't really any more burdensome than discovery of email. And so to me, I thought that was real key to put parties on notice that if you want to make the proportionality argument with regard to chat messages, courts are beginning to see that, "Okay, this really isn't any more of a burden than other sources of ESI."

Ryan Kalamaya:
So then, if we go back to the kind of earlier topic of what people do to conceal, what are the things that a person like Eric Wolf, let's say that he has the Slack messages or the books the QuickBooks files that he has to produce. What are examples of things that one might see Eric be doing to conceal that information or changing it?

Doug Austin:
One of the keys really is how that information is produced because form of production. And I'm sure Brett probably talked about since he was talking about some e-discovery basics. The term metadata, which is technically data about data, but the key in terms of producing the information as it lies, as opposed to like a printout, is that the data about the data that metadata really helps authenticate the evidence. And that's one of the things that I think is key about how information is produced. And I've seen cases where people have produced text message conversations that were doctored in some way. They might have interspersed messages that they never sent that were just kind of in there to be sent in with a conversation to make it seem like there was a back and forth going on.

Doug Austin:
Last year, I covered an article where they were talking about somebody who actually changed the contact name for somebody else in their phone to their spouse they were looking to get divorced with and had that person send messages. And then they had basically what looked like a conversation that between the spouse and them that made it look like this person was saying all these inflammatory things. Then when they got a hold of the phone, they realize, and actually what the spouse did was they produced their phone log that said, I'm not sending any of these messages. So it's that type of stuff that you have to watch out for. That's why a printout of that evidence is not really the same as producing the actual data itself. And so, if you are a party in that regard, you want to really push for producing the data and not printouts of the data or images of the data.

Ryan Kalamaya:
That reminds me in terms of the QuickBooks. It's a standard bookkeeping service for self-employed people and businesses. And there was a case I was involved with where we asked for the data file. And as soon as the petition for divorce had been filed that day, you could see a bunch of entries in the books be changed. And if you had asked for the profit and loss or the balance sheet, it would show a relatively clean business or a very profitable business. And then... but that was all changed. And you could see that in the metadata. So would that be an example of the key in asking for the metadata or the original, the native data, as opposed to asking for the PDFs or the paper documents?

Doug Austin:
Absolutely. Because any good accounting system that's going to provide a transaction log or audit log, or what have you, that's going to illustrate what's been done over a course of time. So you could present the books a certain way, but when you get to the data that underlines that information, you could see how that got there and be able to see what may be actions have been taken to try to hide the information if you will.

Ryan Kalamaya:
We'll talk about spoliation next and what happens when a party's caught doing that sort of concealment or changing stuff. Do you think it's... would you agree that it's generally accepted by judges that a party's entitled to that native data? Can you walk us through a little bit in terms of the proportionality and the things that you're seeing in terms of trends on production of that underlying data?

Doug Austin:
So there is at least when we're talking federal rules, and I want to say, I know it's federal rule 34. I don't remember which sub-section of rule 34. But it provides the ability for the requesting party to request the information as it's maintained in the normal course of business. I think it's 34(b), but I couldn't swear to that. So that means that the onus is on the requesting party to request it that way. And then if the other party wants to say it's burdensome, then they can make that argument. And then they can either, hopefully, sort it out or they can get in front of the court to do it. One of the best ways and I know divorce cases some are bigger than others being a family law case.

Doug Austin:
But one of the best ways to kind of establish how the evidence will be handled when it comes to electronic evidence is what's known as an ESI protocol where you actually established the parameters of what's discoverable. What's the timeframe, whatever the case may be, what's the form in terms of how it will be produced, and try to get agreement between the parties in advance. And then certainly if you can't get agreement, you come to the court to try to get that dispute resolved. But that is a great way to just kind of get those issues out on the table upfront.

Ryan Kalamaya:
And one of the things that listeners from the episode that we had with Brett that would recognize is that I gave an example. There was a case I previously had where I had requested text messages between the other party and their new... their boyfriend. And I called the opposing counsel and said, "Listen, I don't need every single text message. I don't care about the bananas at whole foods and whether or not, need more groceries, but I do want..." And we agreed on various search terms over a particular time period. And so what I proposed was, and it sounds like this is what you say is kind of recognized is that there's an agreement on. I said, "I want all the text messages to be searched for these key terms. The children's names, the maintenance, alimony. So that if they're talking the boyfriend and the spouse are talking about what's going to happen in the future with a wedding or something of that, that would relate to the current existing divorce that that would be relevant in the proportionality." It would be like, "Okay, you don't need to produce every single text message."

Doug Austin:
Yeah, absolutely. And when it comes to proportionality, courts don't like fishing expeditions. They want to be considered really relevant to the case. And obviously relevance is sometimes disputed as well. But certainly the things you talked about there certainly would likely be relevant, and most family law cases like that. One of the things that's key is it's not only going after certain information, but people don't realize that once there's a anticipation of litigation, that you have a duty to start preserving that potential evidence, and anticipation of litigation doesn't mean the case is actually filed. It could mean one spouse saying to another, "I'm going to file for divorce."

Doug Austin:
And at that point, you technically could be under the anticipation of litigation. And one of the things that, of course, I see often is people might have kind of an automatic deletion of their text messages or something like that periodically, where if they have an expectation of litigation. They should turn that off because that's discoverable data that, if they're not careful, that could be automatically deleted. And then they've spoliated evidence associated with the case.

Ryan Kalamaya:
Well, [inaudible 00:15:21], it's funny you should mention that because that is exactly what happened in that particular case. And the other attorney was not aware and had not apparently advised their client. But a bunch of text messages, which were undoubtedly, they fell within the kind of search terms and time periods they were deleted. So let's talk about spoliation. A court do in that circumstance, or what are the options for the courts in when text messages are deleted.

Doug Austin:
So the court has a couple of factor tests. Rule 37 is where the issue of spoliation of evidence is dealt with. And rule 37(b) has a five-factor test that deals with things like the expeditious resolution of litigation and the court's ability to manage its stock. It's the prejudice to the parties seeking sanctions for spoliation, which is really important because I've seen a lot of sanctions requests not get past the prejudice. "Okay. Yeah. This data was deleted, but it wasn't really important." Policy favoring, just a resolution other than maybe a case disposition and lesser sanctions. And 37(e) looks at whether the electronically stored information should have been preserved, that the ESI loss was caused by the failure to preserve it, reasonably preserve that and that it can't be recovered through additional discovery. Somebody else has a copy of that data if you can't get the sanctions.

Doug Austin:
And then in terms of serious sanctions, such as maybe if you were to get to a jury trial and adverse inference instruction to the jury or case dismissal, you need to show intent to deprive. And that's a pretty hard standard to get to that level of sanctions. And those rules changes came into effect in 2015 December of 2015. So it used to be that you could get serious sanctions from what would be considered gross negligence. But today you really have to show in terms of deprive. You have to show there were actions that a party took to intentionally delete data. For example, wipe their hard drive or wipe their device, their mobile device, or what have you, where it seems clear that their intent was to deprive the other party of evidence. That's when the serious sanctions can come into play in rule 37(e).

Ryan Kalamaya:
So it's not a spoliation, but if parties are changing QuickBooks files, that's going to be treated differently obviously than the automatic deletion of the text messages, especially before divorce.

Doug Austin:
[inaudible 00:17:45]. Because they're taking an active attempt to, at least change data, if not destroy data. And obviously, then the question would come is if the party can't get that data back in some way, then that is prejudicial to the party seeking that data. And then that could lead to potentially significant sanctions.

Ryan Kalamaya:
And in my circumstance, [inaudible 00:18:06] and listeners would recognize this in Colorado, divorces are handled by judges. I know you're in Texas. And I think that there is some jury trial element in divorces possibly. But in Colorado, it's only handled by judges. At least in my circumstance, there was a witness that was precluded from testifying on various topics because during the time period or topics that were deleted, and that was, and then there was a negative inference. So it sounds like that was... it's unusual, and it doesn't sound like there's much case law out there on family law cases as of yet.

Doug Austin:
You don't see a lot of family law cases get to that point. But certainly, I think lessons can be learned in general cases dealing with the same type of evidence because it's still is applicable. So I wouldn't necessarily say, "Well, only look at family law cases where this comes into play." Look at any cases where this type of evidence comes into play because those rulings, I think, still apply across the board.

Ryan Kalamaya:
Well, the final thing I want to wrap up in because I know that you are involved in cybersecurity and data privacy. One thing I think about is in divorces, we're obviously exchanging tax returns and bank statements and private confidential information. What are the kind of tips and best practices that come to mind for you for divorce attorneys or parties handling that sensitive information and exchanging it?

Doug Austin:
Well, so one of the things obviously you've got to keep in mind is how you're managing that data and holding that data. Certainly, one of the things this past year has challenged us with is a lot of law firms that have worked in offices who've had to disperse. That had to disperse to remote locations. So you've been, or you've seen a lot of folks start to share information over the cloud. And, of course, that may or may not be as secure depending on how they're doing it. So one of the things I'm seeing is more law firms are going to cloud-based solutions where they know that security is in place and they can really manage that information. Take a product we've all used over the years, Microsoft Office, and now it's available as a cloud in 365 along with other products associated with it.

Doug Austin:
And that's cloud-based. So you can work with your colleagues regardless where they are and still store the information in a secure manner. So that's, I think one of the things to be [inaudible 00:20:25] kind of noting there in terms of that. The other thing, when it comes to selecting platforms to store your data is always look for something that supports two-factor or multifactor authentication. Because if somebody steals your password, they get into the system. But if someone steals your password, but then you're still to get a text or an email that says, "Here's the code to log in." They really can't do much unless they can get into your email as well or have your device. So that's one of the best measures in avoiding data breaches is looking for systems that support two-factor authentication.

Doug Austin:
And the final thing I would say is it's important for attorneys everywhere to know that every state has breached notification law. So if you are breached, it is your duty to let your clients know that you've suffered a breach and on what, if anything has happened with regard to that. [inaudible 00:21:23] people make these surprise that it's truly every state that has one, but it is universal. And something that all attorneys should be prepared is, do the best you can. Sometimes breaches happen, but you need to be upfront about.

Ryan Kalamaya:
Well, Doug, I appreciate your time. And it's been an interesting conversation for people that want to find out. I know you introduced that at the beginning where they can find you. Can you repeat that [inaudible 00:21:47] it will be in the show notes, but what's the best way to contact you and get in touch.

Doug Austin:
So best way of certainly at least to find my blog is ediscoverytoday.com. And again, that's all one word. eDiscovery Today are no dashes. My email address is daustin@ediscoverytoday.com. So that's the best way to get ahold of me. And, of course, I do consulting on things like ESI protocols. I do a general e-discovery consulting. So if people are interested in that, they can contact me there.

Ryan Kalamaya:
Well, thank you. I think after listening to your expertise and your obvious knowledge on this industry, I think it's a lot of divorce attorneys here in Colorado that I work with. They really are struggling to kind of catch up with the monumental change that we've gone through, especially over the last year. So it's good to know that there's people out there with expertise in this area. And thanks so much for helping us out and talking about e-discovery and best practices.

Doug Austin:
Thanks for having me, Ryan.

Ryan Kalamaya:
Thank you.

Ryan Kalamaya:
Hey, everyone. This is Ryan, again. Thank you for joining us on Divorce at Altitude. If you found our tips, insight or discussion, helpful, please tell a friend about this podcast. For show notes, additional resources, or links mentioned on today's episode, visit divorceataltitude.com. Follow us on Apple Podcasts, Spotify, or wherever you listen in. Many of our episodes are also posted on YouTube. You can also find Amy and me at kalamaya.law or (970) 315-2365 that's K-A-L-A-M-A-Y-A.law.