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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The Sedona Conference Commentary on Ethics & Metadata – eDiscovery Best Practices
 The Sedona Conference Commentary on Ethics & Metadata – eDiscovery Best Practices 150 150 CloudNine

One of the most influential organizations in eDiscovery is The Sedona Conference® (TSC), and some of TSC’s most recent contributions have been documented in this blog, including a commentary on proportionality (released in 2010), database principles (2011) and guidance for judges (2012). Last month, TSC’s Working Group on Electronic Document Retention & Production (WG1) released it’s Second Edition of The Sedona Conference® Commentary on Ethics & Metadata.

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SWOT Away Uncertainty in Your Discovery Practice – eDiscovery Best Practices
 SWOT Away Uncertainty in Your Discovery Practice – eDiscovery Best Practices 150 150 CloudNine

Understanding the relationships of your organization’s internal and external challenges allows your organization to approach ongoing and future discovery in a more strategic process. A “SWOT” analysis is a tool that can be used to develop that understanding.

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Imagine if the Zubulake Case Turned Out Like This – eDiscovery Case Law
 Imagine if the Zubulake Case Turned Out Like This – eDiscovery Case Law 150 150 CloudNine

You’ve got an employee suing her ex-employer for discrimination, hostile work environment and being forced to resign. During discovery, it was determined that a key email was deleted due to the employer’s routine auto-delete policy, so the plaintiff filed a motion for sanctions. Sound familiar? Yep. Was her motion granted? Nope.

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Judge Says “Dude, Where’s Your CAR?” – eDiscovery Case Law
 Judge Says “Dude, Where’s Your CAR?” – eDiscovery Case Law 150 150 CloudNine

Ralph Losey describes a unique case this week in his e-Discovery Team ® blog (Poor Plaintiff’s Counsel, Can’t Even Find a CAR, Much Less Drive One). In Northstar Marine, Inc. v. Huffman, the defendant’s motion to enforce the parties’ document production agreement was granted after Alabama Magistrate Judge William E. Cassady rejected the plaintiff’s excuse that “it is having difficulty locating an inexpensive provider of electronic search technology to assist with discovery”.

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Data Needs to Be Converted More Often than You Think – eDiscovery Best Practices
 Data Needs to Be Converted More Often than You Think – eDiscovery Best Practices 150 150 CloudNine

We’ve discussed previously that electronic files aren’t necessarily ready to review just because they’re electronic. They often need processing and good processing requires a sound process. Sometimes that process includes data conversion if the data isn’t in the most useful format.

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Judge Sides with Both Parties in Form of Production Dispute – eDiscovery Case Law
 Judge Sides with Both Parties in Form of Production Dispute – eDiscovery Case Law 150 150 CloudNine

The opinion in Kwasniewski v. Sanofi-Aventis U.S. LLC suggests that producing parties can satisfy their obligation to produce documents in an organized manner by offering a table of contents, rendering text searchable, indicating which data responds to which request, and including certain metadata, such as Bates numbers.

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Everything You Wanted to Know about Technology Assisted Review – eDiscovery Trends
 Everything You Wanted to Know about Technology Assisted Review – eDiscovery Trends 150 150 CloudNine

Rob Robinson has put together another terrific compilation, this time a compilation of articles about Technology Assisted Review and Predictive Coding over the past 1 1/2 years (from February 2012, last updated on August 12). If you simply can’t get enough of the topic, you’ll want to check it out.

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Scheindlin Reverses Magistrate Judge Ruling, Orders Sanction for Spoliation of Data – eDiscovery Case Law
 Scheindlin Reverses Magistrate Judge Ruling, Orders Sanction for Spoliation of Data – eDiscovery Case Law 150 150 CloudNine

If you’re hoping to get away with failing to preserve data in eDiscovery, you might want to think again if your case appears in the docket for the Southern District of New York with Judge Shira Scheindlin presiding.

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How Big is Your ESI Collection, Really? – eDiscovery Best Practices
 How Big is Your ESI Collection, Really? – eDiscovery Best Practices 150 150 CloudNine

After identifying custodians relevant to the case and collecting files from each, you’ve collected roughly 100 gigabytes (GB) of Microsoft Outlook email PST files and loose electronic files from the custodians. You identify a vendor to process the files to load into a review tool, so that you can perform review and produce the files to opposing counsel. After processing, the vendor sends you a bill – and they’ve charged you to process over 200 GB!! Are they trying to overbill you?

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Permissive Adverse Inference Instruction Upheld on Appeal – eDiscovery Case Law
 Permissive Adverse Inference Instruction Upheld on Appeal – eDiscovery Case Law 150 150 CloudNine

In Mali v. Federal Insurance Co., the Second Circuit explained the distinctions between two types of adverse inference instructions: a sanction for misconduct versus an explanatory instruction that details the jury’s fact-finding abilities. Because the lower court opted to give a permissive adverse inference instruction, which is not a punishment, the court did not err by not requiring the defendant to show that the plaintiffs acted with a culpable state of mind.

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