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.
read moreI 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”.
read moreIn 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.
read moreWhen 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.
read moreSometimes, 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.
read moreYesterday, we talked about the importance of tracking chain of custody order to be able to fight challenges of electronically stored information (ESI) by opposing parties. Today, let’s talk about a common mistake that organizations make when collecting their own files to turn over for discovery purposes.
read moreIf you’re a baseball fan you probably remember Ryan Braun and the reported failed test for performance enhancing drugs that he successfully challenged by challenging the chain of custody associated with his blood sample. When it comes to electronically stored information (ESI), ensuring proper chain of custody tracking is also an important part of handling that ESI through the eDiscovery process in order to be able to fight challenges of the ESI by opposing parties. An insufficient chain of custody is a chain, chain, chain of fools.
read moreIn The Country Vintner of North Carolina, LLC v. E. & J. Gallo Winery, Inc., when deciding which costs are taxable, the Fourth Circuit chose to follow the Third Circuit’s reasoning in Race Tires America, Inc. v. Hoosier Racing Tire Corp., which read 28 U.S.C. § 1920(4) narrowly. Specifically, the court approved taxation of file conversion and transferring files onto CDs as “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case” but no other tasks related to electronically stored information (ESI).
read moreWhen I talk with attorneys about using technology to assist with review (whether via techniques such as predictive coding or merely advanced searching and culling mechanisms), most of them still seem to question whether these techniques can measure up to good, old-fashioned human attorney review. Despite several studies that question the accuracy of human review, many attorneys still feel that their review capability is as good or better than technical approaches. Here is perhaps the best explanation yet why that may not be the case.
read moreRemember the adverse inference instructions in the Zubulake v. UBS Warburg and Apple v. Samsung cases? This case has characteristics of both of those. In Pillay v. Millard Refrigerated Servs., Inc., Illinois District Judge Joan H. Lefkow granted the plaintiff’s motion for an adverse inference jury instruction due to the defendant’s failure to stop automatic deletion of employee productivity tracking data used as a reason for terminating a disabled employee.
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