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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Problems with Review? It’s Not the End of the World – eDiscovery Best Practices
 Problems with Review? It’s Not the End of the World – eDiscovery Best Practices 150 150 CloudNine

If 2012 will be remembered for anything from an eDiscovery standpoint, it will be remembered for the arrival of Technology Assisted Review (TAR), aka Computer Assisted Review (CAR), as a court accepted method for conducting eDiscovery review. Many associate TAR with predictive coding, but that’s not the only form of TAR to assist with review. How the documents are organized for review can make a big difference in the efficiency of review, not only saving costs, but also improving accuracy by assigning similar documents to the same reviewer.

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Class Action Plaintiffs Required to Provide Social Media Passwords and Cell Phones – eDiscovery Case Law
 Class Action Plaintiffs Required to Provide Social Media Passwords and Cell Phones – eDiscovery Case Law 150 150 CloudNine

Considering proportionality and accessibility concerns in EEOC v. Original Honeybaked Ham Co. of Georgia, Colorado Magistrate Judge Michael Hegarty held that where a party had showed certain of its adversaries’ social media content and text messages were relevant, the adversaries must produce usernames and passwords for their social media accounts, usernames and passwords for e-mail accounts and blogs, and cell phones used to send or receive text messages to be examined by a forensic expert as a special master in camera.

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According to IDC, Big Data is Only Getting Bigger – eDiscovery Trends
 According to IDC, Big Data is Only Getting Bigger – eDiscovery Trends 150 150 CloudNine

According to the International Data Corporation (IDC), big data is only getting bigger. In the publication IDC iView “Big Data, Bigger Digital Shadows, and Biggest Growth in the Far East,” (sponsored by EMC), the “digital universe” is growing even faster than we thought.

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Trend Has Shifted Against Reimbursement of eDiscovery Costs – eDiscovery Case Law
 Trend Has Shifted Against Reimbursement of eDiscovery Costs – eDiscovery Case Law 150 150 CloudNine

Last year, the trend seemed to be to award the prevailing party reimbursement of eDiscovery costs. Now, that trend appears to have been reversed with those requests being denied (or reversed) by the courts. Now, here is another case where reimbursement of eDiscovery costs was denied.

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Baby, You Can Drive My CARRM – eDiscovery Trends
 Baby, You Can Drive My CARRM – eDiscovery Trends 150 150 CloudNine

There have been a number of terms applied to using technology to aid in eDiscovery review, including technology assisted review (often referred to by its acronym “TAR”) and predictive coding. Another term is Computer Assisted Review (which lends itself to the obvious acronym of “CAR”).
Now, the Electronic Discovery Reference Model (EDRM) is looking to provide an “owner’s manual” to that CAR with its new draft Computer Assisted Review Reference Model (CARRM), which depicts the flow for a successful CAR project.

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How Are You Handling Defensible Deletion? – eDiscovery Best Practices
 How Are You Handling Defensible Deletion? – eDiscovery Best Practices 150 150 CloudNine

According to the Compliance, Governance and Oversight Council (CGOC), information volume doubles every 18-24 months and 90% of the data in the world has been created in the last two years. So, many organizations are drowning in electronically stored information (ESI) and costs associated with managing that ESI for eDiscovery are continuing to rise. An effective plan for information governance that includes defensible deletion of ESI is an effective way of keeping that ESI from overwhelming your organization. But, what percentage of organizations is defensibly deleting data? A new survey from eDJGroup is attempting to find out.

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Percentage of eDiscovery Sanctions Cases Declining – eDiscovery Trends
 Percentage of eDiscovery Sanctions Cases Declining – eDiscovery Trends 150 150 CloudNine

According to Kroll Ontrack, the percentage of eDiscovery cases addressing sanctions “dropped by approximately ten percent” compared to 2011, while “cases addressing procedural issues more than doubled”. Let’s take a closer look at the numbers and look at some cases in each category.

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“Rap Weasel” Forced to Honor $1 Million Reward Offered via YouTube – eDiscovery Case Law
 “Rap Weasel” Forced to Honor $1 Million Reward Offered via YouTube – eDiscovery Case Law 150 150 CloudNine

It isn’t every day that eDiscoveryDaily has reason to reference The Hollywood Reporter in a story about eDiscovery case law, but even celebrities have eDiscovery preservation obligations during litigation. In Augstein v. Leslie, New York District Judge Harold Baer imposed an adverse inference sanction against hip hop and R&B artist Ryan Leslie for “negligent destruction” of a hard drive returned to him by the plaintiff after a $1 million reward was offered via YouTube. On November 28, a jury ordered him to pay the $1 million reward to the plaintiff.

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More Self-Documentation Features for Review Solutions – eDiscovery Best Practices
 More Self-Documentation Features for Review Solutions – eDiscovery Best Practices 150 150 CloudNine

As we discussed yesterday, one feature of review solutions that often gets overlooked is the ability for the review solution to automatically document searching and review activities. Not only does that make it easier to identify potential issues in the process; it also facilitates the ability for attorneys to demonstrate a defensible approach to discovery to the court. Let’s discuss two other areas where self-documentation can assist in the discovery analysis and review process.

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When Considering Review Solutions, Don’t Forget About Self-Documentation – eDiscovery Best Practices
 When Considering Review Solutions, Don’t Forget About Self-Documentation – eDiscovery Best Practices 150 150 CloudNine

When evaluating eDiscovery review solutions, there are a number of features that attorneys consider as part of their selection process. For example: What searching capabilities does the solution have? How does it handle native files? How does it support annotations and redactions of images? Can it support conceptual clustering and predictive coding? But, one feature that often gets overlooked is the ability for the review solution to automatically document searching and review activities. Not only does that make it easier to identify potential issues in the process; it also facilitates the ability for attorneys to demonstrate a defensible approach to discovery to the court.

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