Our Insights on eDiscovery

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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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Self-Collecting? Don’t Forget to Check for Image Only Files – eDiscovery Best Practices
 Self-Collecting? Don’t Forget to Check for Image Only Files – eDiscovery Best Practices 150 150 CloudNine

Yesterday, 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.

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Chain, Chain, Chain: Chain of Custody – eDiscovery Best Practices
 Chain, Chain, Chain: Chain of Custody – eDiscovery Best Practices 150 150 CloudNine

If 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.

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Another Case where Reimbursement of eDiscovery Costs are Denied – eDiscovery Case Law
 Another Case where Reimbursement of eDiscovery Costs are Denied – eDiscovery Case Law 150 150 CloudNine

In 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).

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