Our Insights on eDiscovery

Read on to learn more about the latest trends and insights in the world of digital discovery.
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Court States that Duty to Meet and Confer is Not an “Empty Formality”, Denies Request for Sanctions: eDiscovery Case Law
 Court States that Duty to Meet and Confer is Not an “Empty Formality”, Denies Request for Sanctions: eDiscovery Case Law 150 150 CloudNine

In Whitesell Corporation v. Electrolux Home Products, Inc. et. al., Georgia District Judge J. Randal Hall denied the plaintiff’s motion for sanctions against the defendant for identifying a deponent that (according to the plaintiff) had no particularized information regarding the defendant’s efforts to produce documents, stating that he was “unimpressed” by the plaintiff’s effort to confer on the matter and stating that the “duty-to-confer is not an empty formality”.

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Do You Test Your Search Terms Before Proposing Them to Opposing Counsel?: eDiscovery Best Practices
 Do You Test Your Search Terms Before Proposing Them to Opposing Counsel?: eDiscovery Best Practices 150 150 CloudNine

If you don’t, you should. When litigation is anticipated, it’s never too early to begin collecting potentially responsive data and assessing it by performing searches and testing the results. However, if you wait until after the meet and confer with opposing counsel, it can be too late. Let’s look at an example.

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Court Orders Defendant to Produce Metadata for Previously Produced Emails: eDiscovery Case Law
 Court Orders Defendant to Produce Metadata for Previously Produced Emails: eDiscovery Case Law 150 150 CloudNine

In Prezio Health, Inc. v. Schenk, et. al., after “a careful in camera review” of emails responsive to eighteen keyword search terms, Connecticut Magistrate Judge Joan Glazer Margolis ordered the defendant to produce metadata for eight specific emails which had already been produced to the plaintiff.

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ICYMI Weekly Summary Newsletter for the Week Ending October 10, 2015
 ICYMI Weekly Summary Newsletter for the Week Ending October 10, 2015 150 150 CloudNine

Here are your ICYMI (In Case You Missed It) weekly summaries of the posts for this week (with links to the full post on our blog site) for you to check out.

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Defendant Ordered to Produce Emails Between Non-Attorney Employees That Were Deemed Privileged: eDiscovery Case Law
 Defendant Ordered to Produce Emails Between Non-Attorney Employees That Were Deemed Privileged: eDiscovery Case Law 150 150 CloudNine

In Cicon v. State Farm Mutual Auto Ins. Co., Pennsylvania District Judge Richard P. Conaboy denied the plaintiff’s request for the defendant to produce attorney-client communications that occurred before the filing of the complaint, but granted his request regarding communications between non-attorney employees before the plaintiff’s counsel sent a letter threatening litigation, ordering the defendant to produce those emails, while allowing the defendant to redact explicit discussion of an attorney’s advice.

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Europe’s Highest Court Strikes Down 15 Year Old Safe Harbor Agreement: eDiscovery Trends
 Europe’s Highest Court Strikes Down 15 Year Old Safe Harbor Agreement: eDiscovery Trends 150 150 CloudNine

International eDiscovery just became more difficult. A 27-year-old Austrian law graduate may have brought an end to a 15 year old agreement enabling transatlantic data transfers between the U.S. and European Union because of – wait for it – privacy concerns.

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Samsung Doesn’t Have to Write a Check After All…Yet: eDiscovery Case Law
 Samsung Doesn’t Have to Write a Check After All…Yet: eDiscovery Case Law 150 150 CloudNine

A couple of weeks ago, we revisited the Apple v. Samsung case, which we covered so much last year, it had its own category in our annual case law review. On September 18, U.S. District Court Judge Lucy Koh granted Apple’s motion for partial final judgment in the case that Apple lodged against Samsung in 2011, seemingly clearing the way for Apple to collect $548 million in damages from Samsung. But, on Friday, Samsung received an emergency stay on that order.

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EDRM Has a Twist on its Fall Workshop (and a Webinar Today!): eDiscovery Trends
 EDRM Has a Twist on its Fall Workshop (and a Webinar Today!): eDiscovery Trends 150 150 CloudNine

Around this time of year, EDRM members (like me) expect to convene for our semi-annual visit to St. Paul for the mid-year meeting. This year, EDRM has a twist on the mid-year meeting, which they’re now calling the “fall workshop”. There’s also a webinar today!

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Redactions Aren’t Always as Straightforward as You Think: eDiscovery Best Practices
 Redactions Aren’t Always as Straightforward as You Think: eDiscovery Best Practices 150 150 CloudNine

On the surface, it may seem easy enough to redact a document during eDiscovery review to obscure confidential or privileged information. You may think that all you need to do is draw a black box over the affected text, but there’s actually a lot more to consider in order to ensure that you don’t inadvertently produce information that was intended to be redacted. Here are a some redaction failures and how to avoid them.

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Defendant Compelled to Restore and Produce Emails from Backup Tapes: eDiscovery Case Law
 Defendant Compelled to Restore and Produce Emails from Backup Tapes: eDiscovery Case Law 150 150 CloudNine

In United States ex rel Guardiola v. Renown Health, Nevada Magistrate Judge Valerie P. Cooke concluded that emails contained on backup tapes held by the defendants was not reasonably inaccessible due to undue cost and, even if the emails were reasonably inaccessible due to undue burden or undue cost, “good cause supports their discoverability”. Also, after an analysis of cost-shifting factors found only one factor favored cost-shifting of the production of emails to the relator, Judge Cooke ordered the defendant to bear the cost of restoration and production.

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