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Lessons from Brown v. Tellermate

tellermate

A lot has been written about the recent decision in Brown v. Tellermate Holdings, Ltd., 2014 U.S. Dist. LEXIS 90123 (S.D. Ohio July 1, 2014).  Most often, it’s used to incite a near panic over a perceived new focus on eDiscovery collections from the cloud.  While it did involve collecting data from “the cloud” (Salesforce.com to be exact), the actual issues that were the focus of the Court’s decision were, as they often are, the same old lessons, just applied to a new set of facts and a new storage medium.

First and foremost, it’s about preservation.  Specifically, it’s about that very early step in the EDRM that so many that perform eDiscovery gloss over: Identification.

For many, the Identification step stops at identifying people, but it can’t or adverse consequences — like those that occurred in the Tellermate case decision —will surely follow.  Once you’ve identified custodians, you must have a dialog with them to discover and understand the resources they use (digital or otherwise).  Without that, parties nearly guaranteed to miss information that must be preserved. 

While lawyers can spend hours interviewing each custodian, the more effective, efficient and affordable answer is to utilize a custodian questionnaire.

Custodian Questionnaires are by no means a new concept in litigation, but they are more important today than ever as data continues to be dispersed more and more.  A well-crafted Custodian Questionnaire will help you build the foundation of your Discovery process, ensuring defensibility from the start.

Second, the Tellermate case is a lesson about understanding you and your client’s limits and knowing when to bring in an expert.  Here, it was obvious that neither the client’s employees nor counsel truly understood the issue. They were wrong about who owned the data, they were wrong on whether that data could be accessed by Tellermate Holdings, and based on our experience in Salesforce.com data collections, it seems that they likely were wrong on whether the information in Salesforce.com was truly destroyed beyond any usefulness.

Had Tellermate retained an expert with experience in Salesforce.com collections, it’s likely that none of this would have ever been an issue. 

Finally, there’s a lesson here about understanding contractual terms and obligations as they relate to who owns the data at issue.  While those in the technology industry might take it as a given that client data in systems like Salesforce.com will nearly always remain the property of the client, as this case makes clear, that’s obviously not common knowledge.

As the Court eventually found out, the Salesforce.com Master Subscription Agreement, which is all of nine pages long, makes it incredibly clear that Salesforce.com makes no claim to, and has no right to, their clients’ data. 

So, while the Tellermate case does provide an attractive target for exciting articles about the still somewhat mystifying “cloud”, what’s just as important – if not more so – is that new data sources don’t mean that old standards are discarded.

Indeed, the technosphere will constantly develop new and interesting ways to store and utilize information.  Don’t get distracted by the hype: the same rules of the road will apply.

For more detail about using custodian questionnaires as part of a smart eDiscovery process, read our article, How to Conduct an eDiscovery Custodian Interview.