Our Insights on eDiscovery

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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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Want to Save Your Metadata in Collection? Robocop(y) to the Rescue! – eDiscovery Best Practices
 Want to Save Your Metadata in Collection? Robocop(y) to the Rescue! – eDiscovery Best Practices 150 150 CloudNine

Last week, we discussed the pitfalls of using drag and drop for collecting files for eDiscovery and illustrated an example using a blog post that I wrote about a month ago in a Word document for the post Five Common Myths About Predictive Coding. If you followed the steps along with one of your own files, you noticed that the resulting file appeared to have been modified before it was created, which reflects spoliation of the metadata during the copy process. I mentioned that there are better, more forensically sound, free methods for collecting data. One such method is Robocopy.

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Plaintiff Receives Adverse Inference Sanction for Deleting Facebook Profile – eDiscovery Case Law
 Plaintiff Receives Adverse Inference Sanction for Deleting Facebook Profile – eDiscovery Case Law 150 150 CloudNine

In Gatto v. United Air Lines, Inc., New Jersey Magistrate Judge Steven C. Mannion issued an adverse inference sanction against the plaintiff for failing to preserve data due to the fact that he either, deactivated his Facebook account and allowed the account to be automatically deleted after fourteen days, or that he deleted the account outright. Judge Mannion denied the defendant’s request for attorney’s fees and costs for “the time and effort it was forced to expend in an effort to obtain discovery”.

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Appeals Court Upholds Decision Not to Recuse Judge Peck in Da Silva Moore – eDiscovery Case Law
 Appeals Court Upholds Decision Not to Recuse Judge Peck in Da Silva Moore – eDiscovery Case Law 150 150 CloudNine

As reported by IT-Lex, the Second Circuit of the US Court of Appeals rejected the Plaintiff’s request for a writ of mandamus recusing Magistrate Judge Andrew J. Peck from Da Silva Moore v. Publicis Groupe SA.

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Pop Quiz: Is it Possible for a File to be Modified Before it is Created? – eDiscovery Best Practices
 Pop Quiz: Is it Possible for a File to be Modified Before it is Created? – eDiscovery Best Practices 150 150 CloudNine

Sounds like a trick question, doesn’t it? The answer is yes. And, collecting files in a forensically unsound manner can be a drag…and drop.

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Yet Another Request for Facebook Data Denied – eDiscovery Case Law
 Yet Another Request for Facebook Data Denied – eDiscovery Case Law 150 150 CloudNine

In Potts v. Dollar Tree Stores, Inc., Tennessee District Judge William Haynes ruled that the defendant “lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence” and, therefore, denied the defendant’s motion to compel regarding same.

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The Hammer Comes Down on Losing Plaintiff for Spoliation of Data – eDiscovery Case Law
 The Hammer Comes Down on Losing Plaintiff for Spoliation of Data – eDiscovery Case Law 150 150 CloudNine

Apparently, having your case dismissed isn’t the worst that can happen to you for egregious spoliation of data. You can also be ordered to pay the winning party over $200,000 in fees and costs for the case. In Taylor v. Mitre Corp., Virginia District Judge Liam O’Grady partially granted the prevailing defendant’s motion for fees and costs after the court dismissed the case due to the plaintiff’s spoliation of evidence.

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