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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Wish There Were Better Standards for Production of Native Files? Enough is ENF! – eDiscovery Trends
 Wish There Were Better Standards for Production of Native Files? Enough is ENF! – eDiscovery Trends 150 150 CloudNine

At the Electronic Discovery Reference Model (EDRM) annual meeting back in May, I provided updates for several of the EDRM projects, two of which (Metrics and Jobs) have already made significant announcements since the meeting. Another project, the new Native Files project, has recently released two white papers authored by EDRM member Wade Peterson (of Bowman and Brooke LLP) proposing the creation and adoption of a new ENF (encapsulated native file) standard for the production of native files.

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Printed Copies of Documents Not Enough, Spoliation Sanctions Upheld for Discarding Computer – eDiscovery Case Law
 Printed Copies of Documents Not Enough, Spoliation Sanctions Upheld for Discarding Computer – eDiscovery Case Law 150 150 CloudNine

On May 30, the Appellate Division of the Supreme Court of New York, First Department upheld a spoliation sanction against a plaintiff that failed to preserve electronic files and discarded his computer containing those files.

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Free Your Mind, the Matrix Has You – eDiscovery Trends
 Free Your Mind, the Matrix Has You – eDiscovery Trends 150 150 CloudNine

OK, maybe it’s not The Matrix with Neo and Morpheus, but if you perform a role in eDiscovery, the Electronic Discovery Reference Model (EDRM) Talent Task Matrix probably describes the responsibilities associated with your role in the process.

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Is it OK for an eDiscovery Vendor to Work on Both Sides of a Case? – eDiscovery Best Practices
 Is it OK for an eDiscovery Vendor to Work on Both Sides of a Case? – eDiscovery Best Practices 150 150 CloudNine

A few weeks ago, we covered a case where the plaintiffs’ motion to compel the defendant to meet and confer to establish an agreed protocol for implementing the use of predictive coding software was dismissed (without prejudice) after the defendants stated that they were prepared to meet and confer with the plaintiffs and their non-disqualified ESI consultants regarding the defendants’ predictive coding process. The sticking point may be the ESI consultant in dispute.

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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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