Our Insights on eDiscovery

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Both Sides Instructed to Use Predictive Coding or Show Cause Why Not – eDiscovery Case Law
 Both Sides Instructed to Use Predictive Coding or Show Cause Why Not – eDiscovery Case Law 150 150 CloudNine

As reported in Ralph Losey’s e-Discovery Team® blog, Vice Chancellor J. Travis Laster in Delaware Chancery Court – in EORHB, Inc., et al v. HOA Holdings, LLC, – has issued a “surprise” bench order requiring both sides to use predictive coding and to use the same vendor.

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Proportionality Rules! (and other proportionality sources) – eDiscovery Best Practices
 Proportionality Rules! (and other proportionality sources) – eDiscovery Best Practices 150 150 CloudNine

I found this nice summary of Federal Rules of Civil Procedure and other sources that address proportionality and cooperation in eDiscovery from the Baker Hostetler blog, Discovery Advocate, written by Gil Keteltas entitled Advocating Proportionality? Start with the Rules! Here are the highlights.

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EDRM Announces Several Updates at Mid-Year Meeting – eDiscovery Trends
 EDRM Announces Several Updates at Mid-Year Meeting – eDiscovery Trends 150 150 CloudNine

Last week, the Electronic Discovery Reference Model (EDRM) conducted its mid-year meeting to enable the working groups to meet and further accomplishments in each of the teams for the year. Having attended several of these meetings in the past, I’ve always found them to usually yield significant progress within the working groups, as well as providing a great opportunity for eDiscovery professionals to get together and talk shop. Based on the results of the meeting, EDRM issued an announcement with updates from several of their more active projects.

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Government Document Productions Can Be Like Water Torture – eDiscovery Case Law
 Government Document Productions Can Be Like Water Torture – eDiscovery Case Law 150 150 CloudNine

In Botell v. United States, Magistrate Judge Gregory Hollows noted that the US Government’s “document production performance in these proceedings has been akin to a drop-by-drop water torture” and ordered a preclusion order prohibiting the US Government “from presenting evidence in its case that had been requested by plaintiffs in the Requests for Production, but which has not been produced” as of the date of the order. The US was also still required to produce the documents, whether they planned to use them or not. Judge Hollows also noted that the “Plaintiff has not waived any motion to seek further sanctions regarding non-production of documents, or spoliation of documents.”

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No Bates Numbers in a Native Production? Get Over It! – eDiscovery Best Practices
 No Bates Numbers in a Native Production? Get Over It! – eDiscovery Best Practices 150 150 CloudNine

Last week, we discussed the benefits of requesting document productions in native format, including the ability to use Early Data Assessment/FirstPass Review applications to analyze your opponents produced data and metadata, using capabilities like email analytics and message thread analysis (where missing emails in threads can be identified), synonym searching, fuzzy searching and domain categorization. If you don’t understand the benefits of receiving the underlying metadata, try reviewing an image of an Excel spreadsheet and see if you can understand how the numbers were calculated without the underlying formulas. Not so easy, is it? However, one objection that attorneys provide against producing documents in native format is that they’re not conducive to Bates labeling.

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Avoiding the Redaction “Epic Fail” – eDiscovery Best Practices
 Avoiding the Redaction “Epic Fail” – eDiscovery Best Practices 150 150 CloudNine

On the surface, it may seem easy enough to redact a document during eDiscovery review to obscure confidential or privileged information. All you need to do is draw a black box over the affected text, right? Not so fast, my friend. There’s a lot more to consider in order to ensure that you don’t inadvertently produce information that was intended to be redacted. Here are a few redaction “epic fails” and how to avoid them.

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Cloning of Computer Files: When There’s a Will, There’s a Way – eDiscovery Case Law
 Cloning of Computer Files: When There’s a Will, There’s a Way – eDiscovery Case Law 150 150 CloudNine

In Matter of Tilimbo, a court held it was permissible to order cloning of computer files where doing so did not place an unreasonable burden on a nonparty, appropriate steps were taken to protect any privileged information, and the nonparty had not previously produced the requested information in hard copy.

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eDiscovery Training Valued More Than eDiscovery Certification – eDiscovery Trends
 eDiscovery Training Valued More Than eDiscovery Certification – eDiscovery Trends 150 150 CloudNine

According to a survey conducted by eDJ Group and reported on by Barry Murphy within eDiscovery Journal (eDiscovery Education? Yes! eDiscovery Certification? Maybe…), almost all respondents believe that eDiscovery and education and training are important and three fourths of them believe that good eDiscovery education and training programs exist today. However, when it comes to the importance of eDiscovery certification programs and whether good programs exist today, slightly more than half of respondents responded favorably to eDiscovery certification programs.

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Are You Requesting the Best Production Format for Your Case? – eDiscovery Best Practices
 Are You Requesting the Best Production Format for Your Case? – eDiscovery Best Practices 150 150 CloudNine

One of the blogs I read regularly is Ball in your Court from Craig Ball, a previous thought leader interviewee on this blog. His post from last Tuesday, Are They Trying to Screw Me?, is one that all attorneys that request ESI productions should read.

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Defendant Appeals Sanctions, Only to See Sanction Amount Raised on Appeal – eDiscovery Case Law
 Defendant Appeals Sanctions, Only to See Sanction Amount Raised on Appeal – eDiscovery Case Law 150 150 CloudNine

In Multifeeder Tech. Inc. v. British Confectionery Co. Ltd., the defendant had been previously sanctioned $500,000 ($475,000 to the plaintiff and $25,000 to the court) and held in contempt of court by the magistrate judge for spoliation, who also recommended an adverse inference instruction be issued at trial. The defendant appealed to the district court, where Minnesota District Judge John Tunheim increased the award to the plaintiff to $600,000. Oops!

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