Our Insights on eDiscovery

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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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In False Claims Act Case, Reimbursement of eDiscovery Costs Awarded to Plaintiff – eDiscovery Case Law
 In False Claims Act Case, Reimbursement of eDiscovery Costs Awarded to Plaintiff – eDiscovery Case Law 150 150 CloudNine

In United States ex rel. Becker v. Tools & Metals, Inc., a qui tam False Claims Act litigation, the plaintiffs sought, and the court awarded, costs for, among other things, uploading ESI, creating a Relativity index, and processing data over the objection that expenses should be limited to “reasonable out-of-pocket expenses which are part of the costs normally charged to a fee-paying client.” The court also approved electronic hosting costs, rejecting a defendant’s claim that “reasonableness is determined based on the number of documents used in the litigation.” However, the court refused to award costs for project management and for extracting data from hard drives where the plaintiff could have used better means to conduct a “targeted extraction of information.”

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Important Considerations when Negotiating Search Terms with Opposing Counsel – eDiscovery Best Practices
 Important Considerations when Negotiating Search Terms with Opposing Counsel – eDiscovery Best Practices 150 150 CloudNine

Negotiating search terms with opposing counsel has become commonplace to agree on the scope of discovery. However, when you negotiate terms with the other side, you could be agreeing to produce more than you think. Craig Ball’s latest article in Law Technology News discusses the issues and tries to answer the question: Are Keywords Just Filters?

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Export Files and Custom Content Images in FTK Imager – eDiscovery Best Practices
 Export Files and Custom Content Images in 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 and how to add evidence items with FTK Imager for the purpose of reviewing the contents of evidence items, such as physical drives or images that you’ve created. This week, let’s discuss how to export files and how to create a custom content image of a targeted collection of files.

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200,000 Visits on eDiscovery Daily! – eDiscovery Milestones
 200,000 Visits on eDiscovery Daily! – eDiscovery Milestones 150 150 CloudNine

While we may be “just a bit behind” Google in popularity (900 million visits per month), we’re proud to announce that yesterday eDiscoveryDaily reached the 200,000 visit milestone! It took us a little over 21 months to reach 100,000 visits and just over 11 months to get to 200,000 (don’t tell my boss, he’ll expect 300,000 in 5 1/2 months). When we reach key milestones, we like to take a look back at some of the recent stories we’ve covered, so here are some recent eDiscovery items of interest.

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Some Additional Perspective on the EDRM Enron Data Set “Controversy” – eDiscovery Trends
 Some Additional Perspective on the EDRM Enron Data Set “Controversy” – eDiscovery Trends 150 150 CloudNine

Sharon Nelson wrote a terrific post about the “controversy” regarding the Electronic Discovery Reference Model (EDRM) Enron Data Set in her Ride the Lightning blog (Is the Enron E-Mail Data Set Worth All the Mudslinging?). I wanted to repeat some of her key points here and offer some of my own perspective directly from sitting in on the Data Set team during the EDRM Annual Meeting earlier this month.

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Hard Drive Turned Over to Criminal Defendant – Eight Years Later – eDiscovery Case Law
 Hard Drive Turned Over to Criminal Defendant – Eight Years Later – eDiscovery Case Law 150 150 CloudNine

If you think discovery violations by the other side can cause you problems, imagine being this guy. As reported by WRAL.com in Durham, North Carolina, the defense in State of North Carolina v. Raven S. Abaroa filed a Motion to Dismiss the Case for Discovery Violations after the state produced a forensic image of a hard drive (in the middle of trial) that had been locked away in the Durham Police Department for eight years.

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