Our Insights on eDiscovery

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Court Rules that Stored Communications Act Applies to Former Employee Emails – eDiscovery Case Law
 Court Rules that Stored Communications Act Applies to Former Employee Emails – eDiscovery Case Law 150 150 CloudNine

In Lazette v. Kulmatycki, the Stored Communications Act (SCA) applied when a supervisor reviewed his former employee’s Gmails through her company-issued smartphone; it covered emails the former employee had not yet opened but not emails she had read but not yet deleted.

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Want to Make eDiscovery Proportional? Tie it to the Amount at Stake – eDiscovery Trends
 Want to Make eDiscovery Proportional? Tie it to the Amount at Stake – eDiscovery Trends 150 150 CloudNine

Apparently, the effect of the proposed amendments to the discovery provisions of the Federal Rules of Civil Procedure approved for public comment may not be limited to just Federal courts. They also could have a significant effect on New York’s state courts as well.

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Nominate Your Favorite Law Blog – eDiscovery Trends
 Nominate Your Favorite Law Blog – eDiscovery Trends 150 150 CloudNine

If you’re reading this, you obviously read law blogs. If you have a favorite law blog (or “blawg”, get it?), now is the time to nominate it for recognition in the ABA Journal 7th Annual Blawg 100.

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Plaintiffs Take the Supreme Step in Da Silva Moore – eDiscovery Case Law
 Plaintiffs Take the Supreme Step in Da Silva Moore – eDiscovery Case Law 150 150 CloudNine

As mentioned in Law Technology News (‘Da Silva Moore’ Goes to Washington), attorneys representing lead plaintiff Monique Da Silva Moore and five other employees have filed a petition for certiorari filed with the Supreme Court arguing that New York Magistrate Judge Andrew Peck, who approved an eDiscovery protocol agreed to by the parties that included predictive coding technology, should have recused himself given his previous public statements expressing strong support of predictive coding.

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Not a Typical Blog Post Today
 Not a Typical Blog Post Today 150 150 CloudNine

Since we started eDiscovery Daily back in September 2010, we have yet to miss a scheduled day to publish a blog post. I’m not sure if today counts, but I feel compelled to talk about my dad. Please excuse this one day departure from our normal topics.

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Appellate Court Denies Sanctions for Routine Deletion of Text Messages – eDiscovery Case Law
 Appellate Court Denies Sanctions for Routine Deletion of Text Messages – eDiscovery Case Law 150 150 CloudNine

In PTSI, Inc. v. Haley, the appellate court denied a motion for spoliation sanctions where the defendants routinely deleted text messages and other data to “clean up” their personal electronic devices: the volume of messages and limited amount of phone storage made it difficult to retain all data and still use the phone for messaging.

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Word’s Stupid “Smart Quotes” – Best of eDiscovery Best Practices
 Word’s Stupid “Smart Quotes” – Best of eDiscovery Best Practices 150 150 CloudNine

I have run into this issue more times than I can count. A client sends me a list of search terms that they want to use to cull a set of data for review in a Microsoft Word document. I copy the terms into the search tool and then, all hell breaks loose!! Either: The search indicates there is a syntax error — OR — The search returns some obviously odd results. And, then, I remember. It’s those stupid Word “smart quotes”.

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Judge Rules Against Spoliation Sanctions when the Evidence Doesn’t Support the Case – eDiscovery Case Law
 Judge Rules Against Spoliation Sanctions when the Evidence Doesn’t Support the Case – eDiscovery Case Law 150 150 CloudNine

In Cottle-Banks v. Cox Commc’ns, Inc., California District Judge Gonzalo P. Curiel denied the plaintiff’s motion for spolation sanctions because the plaintiff was unable to show that deleted recordings of customer calls would have likely been relevant and supportive of her claim.

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EDRM Publishes New Metrics Model – eDiscovery Trends
 EDRM Publishes New Metrics Model – eDiscovery Trends 150 150 CloudNine

When I attended the Annual Meeting for the Electronic Discovery Reference Model (EDRM) last month, one of the projects that was close to a major deliverable was the Metrics project – a project that I worked on during my first two years as a participant in EDRM. Now, EDRM has announced and published that deliverable: a brand new Metrics model.

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Spoliation of Data Can Get You Sent Up the River – eDiscovery Case Law
 Spoliation of Data Can Get You Sent Up the River – eDiscovery Case Law 150 150 CloudNine

Sometimes, eDiscovery can literally be a fishing expedition. I got a kick out of Ralph Losey’s article on E-Discovery Law Today (Fishing Expedition Discovers Laptop Cast into Indian River) where the defendant employee in a RICO case in Simon Property Group, Inc. v. Lauria threw her laptop into a river. Needless to say, given the intentional spoliation of evidence, the court imposed struck all of the defenses raised by the defendant and scheduled the case for trial on the issue of damages.

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