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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When Lawyers Get Sued, They Have Preservation Obligations Too – eDiscovery Case Law
 When Lawyers Get Sued, They Have Preservation Obligations Too – eDiscovery Case Law 150 150 CloudNine

In Distefano v. Law Offices of Barbara H. Katsos, PC., New York Magistrate Judge A. Kathleen Tomlinson found that the defendant (an attorney who was being sued by the plaintiff she previously represented for breach of contract, negligence/legal malpractice, and breach of fiduciary duty/duty of care) had a duty to preserve information from a discarded computer and ordered a hearing for the defendant to address a number of questions to determine the potential relevance of the destroyed data and whether the defendant had a sufficiently culpable state of mind.

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Image is Everything, But it Doesn’t Have to Cost Anything – eDiscovery Best Practices
 Image is Everything, But it Doesn’t Have to Cost Anything – eDiscovery Best Practices 150 150 CloudNine

Let’s recap. So far, in our discussion of free utilities for collection of data for eDiscovery, we’ve discussed the pitfalls of using drag and drop, the benefits of Robocopy (illustrating with the same example copy) and the benefits (and pitfalls) of Richcopy for targeted collection. But, are there any free tools that will enable you to perform a bit-by-bit forensic image copy that includes deleted files and slack space data? Yes, there is.

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Court Rejects Defendants’ Claim of Undue Burden in ERISA Case – eDiscovery Case Law
 Court Rejects Defendants’ Claim of Undue Burden in ERISA Case – eDiscovery Case Law 150 150 CloudNine

In the case In re Coventry Healthcare, Inc.: ERISA Litigation, Maryland Magistrate Judge Jillyn K. Schulze rejected the defendants’ claim of undue burden where they failed to suggest alternatives to using the plaintiffs’ search terms and where they could enter a clawback order to eliminate the cost of reviewing the data for responsiveness and privilege.

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Minnesota Implements Changes to eDiscovery Rules – eDiscovery Trends
 Minnesota Implements Changes to eDiscovery Rules – eDiscovery Trends 150 150 CloudNine

Last week, we reported on potential amendments to the discovery provisions of the Federal Rules of Civil Procedure that could be adopted within the year. States are busy with changes too. One such state is Minnesota, which has amending its rules to emphasize proportionality, collaboration, and informality in the discovery process.

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Court Agrees with Defendant that Preserving 5 Terabytes of Data is Enough – eDiscovery Case Law
 Court Agrees with Defendant that Preserving 5 Terabytes of Data is Enough – eDiscovery Case Law 150 150 CloudNine

In United States ex rel. King v. Solvay, S.A., Texas District Judge Gray Miller granted the defendant’s request for a protective order where the plaintiffs only offered generalized, unsupported claims to support their request to extend and expand discovery.

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You Don’t Have to Be Rich to Use Richcopy – eDiscovery Best Practices
 You Don’t Have to Be Rich to Use Richcopy – eDiscovery Best Practices 150 150 CloudNine

If you want to be able to perform a forensically sound targeted collection, but would prefer a GUI based tool for performing the copy (instead of a command-line tool like Robocopy), then perhaps you should consider Richcopy. RichCopy is a free computer utility program developed by Ken Tamaru of Microsoft to copy file directories. It has some advantages, but also some pitfalls, to consider as a targeted copy and collection tool.

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Court Forces Defendant to Come to Terms with Plaintiff Search Request – eDiscovery Case Law
 Court Forces Defendant to Come to Terms with Plaintiff Search Request – eDiscovery Case Law 150 150 CloudNine

In Robert Bosch LLC v. Snap-On, Inc., Michigan District Judge Robert H. Cleland granted the plaintiff’s motion to compel with regard to specific search terms requested for the defendant to perform. The judge denied the plaintiff’s request for sanctions to award attorneys’ fees and expenses incurred in bringing its motion to compel.

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Plaintiffs’ Objections to Defendant’s Use of Keyword Search before Predictive Coding Rejected – eDiscovery Case Law
 Plaintiffs’ Objections to Defendant’s Use of Keyword Search before Predictive Coding Rejected – eDiscovery Case Law 150 150 CloudNine

In the caseIn Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391), the Plaintiffs’ Steering Committee in a Multi District Litigation objected to the defendant’s use of keyword searching prior to performing predictive coding and requested that the defendant go back to its original set of 19.5 million documents and repeat the predictive coding without performing keyword searching. Indiana District Judge Robert L. Miller, Jr. denied the request.

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Changes to Federal eDiscovery Rules Could Be Coming Within a Year – eDiscovery Trends
 Changes to Federal eDiscovery Rules Could Be Coming Within a Year – eDiscovery Trends 150 150 CloudNine

As reported by Henry Kelston in Law Technology News (Are We on the Cusp of Major Changes to E-Discovery Rules?), 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. The United States Courts’ Advisory Committee on Civil Rules voted last week to send a slate of proposed amendments up the rulemaking chain, to its Standing Committee on Rules of Practice and Procedure, with a recommendation that the proposals be approved for publication and public comment later this year.

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Performing an Example Copy with Robocopy – eDiscovery Best Practices
 Performing an Example Copy with Robocopy – eDiscovery Best Practices 150 150 CloudNine

Yesterday, we discussed the benefits of Robocopy, how to access it via the command line prompt (if you have Windows Vista or later) and how to get it (if you don’t). Today, we’re going to perform an example copy and take a look at the results.

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