Our Insights on eDiscovery

In 2011, The Sedona Conference® made a public comments version of the Cooperation Proclamation: Resources for the Judiciary available on the Sedona Conference website. As the Preface states, “The Resources are intended to aid State and federal judges in the management of electronically stored information (“ESI”) in civil actions for which the judges are responsible”. In 2012, the Resources guide was updated. Last month, the Resources guide was updated again and the free version is available on the Sedona Conference web site.

As we noted yesterday, Wednesday and Tuesday, eDiscoveryDaily published 93 posts related to eDiscovery case decisions and activities over the past year, covering 68 unique cases! Yesterday, we looked back at cases related to privilege and inadvertent disclosures, requests for social media, cases involving technology assisted review and the case of the year – the ubiquitous Apple v. Samsung dispute. Today, let’s take a look back at cases related to sanctions and spoliation.

It’s time for our annual review of eDiscovery case law! We had more than our share of sanctions granted and denied, as well as disputes over admissibility of electronically stored information (ESI), eDiscovery cost reimbursement, and production formats, even disputes regarding eDiscovery fees. So, as we did last year and the year before that and also the year before that, let’s take a look back at 2014!

In Armstrong Pump, Inc. v. Hartman, New York Magistrate Judge Hugh B. Scott granted in part the defendant’s motion to compel discovery responses and fashioned a “new and simpler approach” to discovery, identifying thirteen search terms/phrases for the plaintiff to use when searching its document collection.

In Design Basics, LLC. v. Carhart Lumber Co., Nebraska Magistrate Judge Cheryl R. Zwart, after an extensive hearing on the plaintiff’s motion to compel “full disk imaging of Defendant’s hard drives, including Defendant’s POS server, secretaries’ computers, UBS devices. . .”, denied the motion after invoking the mandatory balancing test provided in FRCP Rule 26(b)(2)(C).

In Venture Corp. Ltd. v. Barrett, California Magistrate Judge Paul S. Grewal ordered the plaintiffs to “(1) either organize and label each document it has produced or it shall provide custodial and other organizational information along the lines outlined above and (2) produce load files for its production containing searchable text and metadata” in order to conform to Rule 34 of the Federal Rules of Procedure and meet their obligation.

Over a year ago, we covered an article in The American Lawyer by Lisa Holton about five eDiscovery trailblazing judges. In a few days, one of those judges, John Facciola, U.S. Magistrate Judge, U.S. District Court for the District of Columbia, is retiring.