Our Insights on eDiscovery

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

July 23, 2013

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.

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

July 22, 2013

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.

Free Your Mind, the Matrix Has You – eDiscovery Trends

July 19, 2013

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.

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

July 18, 2013

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.

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

July 17, 2013

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.

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

July 16, 2013

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.

Nominate Your Favorite Law Blog – eDiscovery Trends

July 15, 2013

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.

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

July 12, 2013

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.

Not a Typical Blog Post Today

July 9, 2013

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.

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

July 8, 2013

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.