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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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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“Not Me”, The Fallibility of Human Review – eDiscovery Best Practices
 “Not Me”, The Fallibility of Human Review – eDiscovery Best Practices 150 150 CloudNine

When 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.

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Adverse Inference Sanction for Defendant who Failed to Stop Automatic Deletion – eDiscovery Case Law
 Adverse Inference Sanction for Defendant who Failed to Stop Automatic Deletion – eDiscovery Case Law 150 150 CloudNine

Remember 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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Capturing Memory and Obtaining Protected Files with FTK Imager – eDiscovery Best Practices
 Capturing Memory and Obtaining Protected Files with FTK Imager – eDiscovery Best Practices 150 150 CloudNine

Over the past few weeks, we have talked about the benefits and capabilities of Forensic Toolkit (FTK) Imager from AccessData (and obtaining your own free copy), how to create a disk image, how to add evidence items for the purpose of reviewing the contents of those evidence items (such as physical drives or images that you’ve created) and how to export files and create a custom content image of a targeted collection of files with FTK Imager. This week, let’s discuss how to Capture Memory and Obtain Protected Files to collect a user’s account information and possible passwords to other files.

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Appellate Court Upholds District Court Discretion for Determining the Strength of Adverse Inference Sanction – eDiscovery Case Law
 Appellate Court Upholds District Court Discretion for Determining the Strength of Adverse Inference Sanction – eDiscovery Case Law 150 150 CloudNine

In Flagg v. City of Detroit, the Sixth Circuit held that the district court did not abuse its discretion in issuing a permissive rather than mandatory adverse inference instruction for the defendant’s deletion of emails, noting that the district court has discretion in determining the strength of the inference to be applied.

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eDiscovery Vendors Are Not Immune to eDiscovery Sanctions – eDiscovery Case Law
 eDiscovery Vendors Are Not Immune to eDiscovery Sanctions – eDiscovery Case Law 150 150 CloudNine

In Nuance Communications Inc. v. Abbyy Software House et al., California District Judge Jeffrey S. White refused Wednesday to dismiss Nuance Communications Inc.’s patent infringement suit against Lexmark International Inc. and Abbyy Software House, and awarded reimbursement of plaintiff’s attorneys’ fees and costs in excess of $130,000 as part of discovery abuse sanctions resulting from the late production of relevant documents from Abbyy.

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Motion to Compel Dismissed after Defendant Agrees to Conditional Meet and Confer – eDiscovery Case Law
 Motion to Compel Dismissed after Defendant Agrees to Conditional Meet and Confer – eDiscovery Case Law 150 150 CloudNine

In Gordon v. Kaleida Health, New York Magistrate Judge Leslie G. Foschio dismissed (without prejudice) the plaintiffs’ motion to compel the defendant to meet and confer to establish an agreed protocol for implementing the use of predictive coding software 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.

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Changes to Federal eDiscovery Rules Are One Step Closer – eDiscovery Trends
 Changes to Federal eDiscovery Rules Are One Step Closer – eDiscovery Trends 150 150 CloudNine

In April, we referenced Henry Kelston’s report in Law Technology News that another major set of amendments to the discovery provisions of the Federal Rules of Civil Procedure is getting closer and could be adopted within the year. Now, the amendments are one step closer to enactment as they have been approved for public comment.

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