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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Emails Between Husband and Wife Are Not Privileged, If Sent from Work Computer – eDiscovery Case Law
 Emails Between Husband and Wife Are Not Privileged, If Sent from Work Computer – eDiscovery Case Law 150 150 CloudNine

In United States v. Hamilton, the Fourth Circuit found that the district court had not abused its discretion in finding that e-mails between the defendant and his wife did not merit marital privilege protection because the defendant had used his office computer and his work e-mail account to send and receive the communications and because he had not taken steps to protect the e-mails in question, even after his employer instituted a policy permitting inspection of e-mails and he was on notice of the policy.

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Chances Are that Delaware Has Been as Busy as Any State in eDiscovery – eDiscovery Trends
 Chances Are that Delaware Has Been as Busy as Any State in eDiscovery – eDiscovery Trends 150 150 CloudNine

In December of 2011, as previously reported in eDiscoveryDaily, the U.S. District Court for the District of Delaware revised the “Default Standard for Discovery, Including Discovery of Electronically Stored Information (ESI)” to reflect changes in technology and to address concerns of attorneys regarding the discovery of ESI. As of January 1, 2013, more changes are in effect in Delaware.

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$2.9 Billion? Gartner Predicts eDiscovery Software Market to Double by 2017 – eDiscovery Trends
 $2.9 Billion? Gartner Predicts eDiscovery Software Market to Double by 2017 – eDiscovery Trends 150 150 CloudNine

As reported by Evan Koblentz in Law Technology News, electronic data discovery software sales reached $1.4 billion worldwide in 2012 and will reach $2.9 billion by 2017 according to Gartner Inc. Their latest forecast for the eDiscovery industry is discussed in Forecast: Enterprise E-Discovery Software, Worldwide, 2012-2017.

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Defendant Had Duty to Preserve Despite No Physical Possession of Documents – eDiscovery Case Law
 Defendant Had Duty to Preserve Despite No Physical Possession of Documents – eDiscovery Case Law 150 150 CloudNine

In Haskins v. First American Title Insurance Co., a court found that an insurance company had a duty to issue a litigation hold to its independent title agents because litigation was reasonably foreseeable and the duty to preserve extends to third parties, as long as the documents are “within a party’s possession, custody, or control.” Although it did not have physical possession, the insurance company controlled the agents’ documents because it had “‘the legal right or ability to obtain the documents from [the agents] upon demand.’”

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Sanctions for Violating Motion to Compel Production? Not Yet. – eDiscovery Case Law
 Sanctions for Violating Motion to Compel Production? Not Yet. – eDiscovery Case Law 150 150 CloudNine

In Fidelity National Title Insurance Co. v. Captiva Lake Investments, LLC, where a party’s “conduct [did not] rise[ ] to the level of a willful violation of the order compelling production” because it was continually working toward the proper production of documents requested by its adversary, a court concluded that the adversary’s motion for sanctions was premature.

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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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