Our Insights on eDiscovery

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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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EDRM Announces Version 3 of the IGRM for Information Governance – eDiscovery Trends
 EDRM Announces Version 3 of the IGRM for Information Governance – eDiscovery Trends 150 150 CloudNine

This week, the Electronic Discovery Reference Model (EDRM) Project, through its Information Governance Reference Model (IGRM) Project, announced today the release of version 3.0 of the IGRM. As their press release notes, “The updated model now includes privacy and security as primary functions and stakeholders in the effective governance of information. This release of the IGRM reflects broad industry support and collaboration across the expert communities of ARMA International and CGOC (Compliance, Governance and Oversight Council).”

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Want to be an eDiscovery PM? Roll Up Your Sleeves. – eDiscovery Trends
 Want to be an eDiscovery PM? Roll Up Your Sleeves. – eDiscovery Trends 150 150 CloudNine

I received an intriguing announcement from The Organization of Legal Professionals (OLP) regarding a new five month intensive certificate course in eDiscovery Project Management. The first course begins on November 13 and runs through the end of April, meeting essentially weekly with all classes recorded so that you can catch up if you miss one. Here are some details about the program.

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Proximity Searches Can Be the Right Balance of Recall and Precision – eDiscovery Best Practices
 Proximity Searches Can Be the Right Balance of Recall and Precision – eDiscovery Best Practices 150 150 CloudNine

When performing keyword searching, the challenge to performing those searches effectively is to balance recall (retrieving responsive documents with hits) and precision (not retrieving too many non-responsive documents with hits). A search that has 100% precision will contain only responsive documents; however, that does not mean that all of the responsive documents have been retrieved. A search that has 100% recall will contain all of the responsive documents in the collection; however, it may also contain a large number of non-responsive documents, which can be drive up review costs. So, how to perform searches that effectively balance recall and precision?

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