Our Insights on eDiscovery

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

January 4, 2013

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.’”

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

January 2, 2013

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.

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

December 21, 2012

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.

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

December 20, 2012

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.

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

December 18, 2012

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.

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

December 17, 2012

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.

Baby, You Can Drive My CARRM – eDiscovery Trends

December 14, 2012

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.

How Are You Handling Defensible Deletion? – eDiscovery Best Practices

December 13, 2012

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.

Percentage of eDiscovery Sanctions Cases Declining – eDiscovery Trends

December 11, 2012

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.

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

December 10, 2012

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.