eDiscovery Daily Blog

• December 10, 2019

Tomorrow, CloudNine will conduct the webcast 2019 eDiscovery Year in Review.  As 2019 has been a busy year, we have a lot of topics planned for tomorrow – everything from key case law decisions to important data privacy trends to whether lawyers are “failing” at cybersecurity and it will be a challenge to get through them all.  But, we still couldn’t cover everything – there was simply too much that happened this year to cover it all.  So, here are some notable events and trends that we covered on eDiscovery Daily this year that we won’t have time to discuss tomorrow.  Enjoy!

To Preserve Sanction Potential, Plaintiff Fights To NOT Have Claim Against Them Dismissed: Yes, you read that right. In DR Distrib., LLC v. 21 Century Smoking, Inc., Illinois District Judge Iain D. Johnston denied the defendants’ Motion for Leave to Amend their counterclaim to remove their own defamation counterclaim (Count VIII) against the plaintiffs – a move to which the plaintiffs objected, because it could eliminate their chance to pursue sanctions against the defendants for ESI spoliation.

Discovery Can’t Be Stayed While Motion to Dismiss is Considered, Court Says: In Udeen v. Subaru of America, Inc., New Jersey Magistrate Judge Joel Schneider denied the defendants’ request that all discovery be stayed until their Motion to Dismiss is decided, but, with the proviso that only limited and focused discovery on core issues would be permitted.

Firm IT Director Predicts “Carnage” in Legal Tech Consolidation: Not since Clubber Lang predicted “pain” in Rocky III has the state of legal tech consolidation been stated quite this way. Is that good news or bad news for consumers of legal tech software and services?

Is eDiscovery “Too Practical” to Offer as Part of Law School Curriculums?: We’ve certainly noted before how slow law schools are to provide eDiscovery education. But, are they slow to push for it because eDiscovery is “too practical”? At least one law school dean suggests that might be the case.

Another Case Where Intent to Deprive is Put in the Hands of the Jury: In Woods v. Scissons, Arizona Chief District Judge G. Murray Snow granted in part and denied in part the plaintiff’s motion for sanctions for spoliation of video footage of an arrest incident involving the plaintiff and the defendant (a police officer with the Prescott Police Department), ruling that non-party City of Prescott violated a duty to preserve evidence of the alleged incident, but that the question of intent should be submitted to the jury to determine appropriate sanctions.

Mary Mack and Kaylee Walstad acquire the EDRM from Duke Law: In a rare two-post day for us at eDiscovery Daily, we broke the news that Mary Mack and Kaylee Walstad, the former executive director and former vice president of client engagement, respectively, of The Association of Certified E-Discovery Specialists (ACEDS) announced that they have acquired the Electronic Discovery Reference Model (EDRM) from the Bolch Judicial Institute at Duke Law School.  Before that, ACEDS announced its new leadership as well.

Why Process in eDiscovery? Isn’t it “Review Ready”?: I’ve been asked a variation of this question for years. But, perhaps the best answer to this question lies in Craig Ball’s new primer – Processing in E-Discovery.

Despite Email from Defendants Instructing to Destroy Evidence, Court Declines Sanctions: In United States et al. v. Supervalu, Inc. et al., Illinois District Judge Richard H. Mills, despite an email produced by the defendants with instructions to their pharmacies to destroy evidence, denied the relators’ motion for sanctions, stating: “Upon reviewing the record, the Court is unable to conclude that Defendants acted in bad faith. If the evidence at trial shows otherwise and bad faith on the part of the Defendants is established, the Court can revisit the issue and consider one or both of the sanctions requested by the Relators or another appropriate sanction.”  {OK, we might mention this one}

Court Infers Bad Faith for Plaintiffs Use of Ephemeral Messaging App: In Herzig v. Arkansas Foundation for Medical Care, Inc., Arkansas District Judge P.K. Holmes, III indicated his belief that the use and “necessity of manually configuring [the messaging app] Signal to delete text communications” on the part of the plaintiffs was “intentional and done in bad faith”. However, Judge Holmes declined to consider appropriate sanctions, ruling that “in light of the [defendant’s] motion for summary judgment, Herzig and Martin’s case can and will be dismissed on the merits.”

Despite Email from Defendants Instructing to Destroy Evidence, Court Declines Sanctions: In United States et al. v. Supervalu, Inc. et al., Illinois District Judge Richard H. Mills, despite an email produced by the defendants with instructions to their pharmacies to destroy evidence, denied the relators’ motion for sanctions, stating: “Upon reviewing the record, the Court is unable to conclude that Defendants acted in bad faith. If the evidence at trial shows otherwise and bad faith on the part of the Defendants is established, the Court can revisit the issue and consider one or both of the sanctions requested by the Relators or another appropriate sanction.”  {OK, we might mention this one}

If this is what didn’t make the cut, tune in tomorrow (noon CST, 1:00pm EST, 10:00am PST) to see what did!

So, what do you think?  What do you think was most notable about eDiscovery in 2019?  Please share any comments you might have or if you’d like to know more about a particular topic.

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Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.