Our Insights on eDiscovery

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Another Disclosure of Privileged Documents Fails the Five Factor Test – eDiscovery Case Law
 Another Disclosure of Privileged Documents Fails the Five Factor Test – eDiscovery Case Law 150 150 CloudNine

In Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., Ohio Magistrate Judge Norah McCann King found that the defendant had waived the attorney-client privilege was waived for 347 emails inadvertently produced, because they failed all factors in the five factor test to determine whether the inadvertent disclosure entitles the producing party to the return of the documents in question.

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eDiscovery Acquisitions: Industry Consolidation Continues
 eDiscovery Acquisitions: Industry Consolidation Continues 150 150 CloudNine

If you think there have been a lot of acquisitions in the eDiscovery industry, you’re right. Now, thanks to Rob Robinson and his Complex Discovery blog, you can get a sense of just how many acquisitions there have been. Rob has provided a post showing 10 Years of eDiscovery Mergers, Acquisitions and Investments.

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eDiscovery Daily is Two Years Old Today!
 eDiscovery Daily is Two Years Old Today! 150 150 CloudNine

It’s hard to believe that it has been two years ago today since we launched the eDiscoveryDaily blog. Now that we’ve hit the “terrible twos”, is the blog going to start going off on rants about various eDiscovery topics, like Will McAvoy in The Newsroom? Maybe. Or maybe not. Wouldn’t that be fun! Here are some highlights from the past six months.

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eDiscovery Case Law: Twitter Loses Appeal in People v. Harris
 eDiscovery Case Law: Twitter Loses Appeal in People v. Harris 150 150 CloudNine

As reported in the Gibbons E-Discovery Law Alert blog, Twitter filed an appeal of the trial court’s decision in People v. Harris with the Appellate Division, First Department in New York, arguing that Twitter users have the right to quash subpoenas pursuant to Twitter’s terms of service agreement as well as because defendants’ constitutional rights are implicated by a government-issued subpoena to a third party. Unfortunately for Twitter, it didn’t take long for the appellate court panel to rule, as they denied Twitter’s motion for a stay of enforcement of the Trial Court’s order to produce Malcolm Harris’s tweets last week.

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eDiscovery Best Practices: Quality Control, Making Sure the Numbers Add Up
 eDiscovery Best Practices: Quality Control, Making Sure the Numbers Add Up 150 150 CloudNine

Yesterday, we wrote about tracking file counts from collection to production, the concept of expanded file counts, and the categorization of files during processing. Today, let’s walk through a scenario to show how the files collected are accounted for during the discovery process.

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eDiscovery Best Practices: Quality Control, It’s a Numbers Game
 eDiscovery Best Practices: Quality Control, It’s a Numbers Game 150 150 CloudNine

Previously, we wrote about Quality Assurance (QA) and Quality Control (QC) in the eDiscovery process. Both are important in improving the quality of work product and making the eDiscovery process more defensible overall. For example, in attorney review, QA mechanisms include validation rules to ensure that entries are recorded correctly while QC mechanisms include a second review (usually by a review supervisor or senior attorney) to ensure that documents are being categorized correctly. Another overall QC mechanism is tracking of document counts through the discovery process, especially from collection to production, to identify how every collected file was handled and why each non-produced document was not produced.

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eDiscovery Case Law: No Sanctions For Spoliation With No Bad Faith
 eDiscovery Case Law: No Sanctions For Spoliation With No Bad Faith 150 150 CloudNine

In Sherman v. Rinchem Co., the plaintiff in a defamation case against his former employer appealed the district court’s denial of both his summary judgment motion and request for an adverse inference jury instruction. The district court had decided the case under Minnesota law, which “provides that ‘even when a breach of the duty to preserve evidence is not done in bad faith, the district court must attempt to remedy any prejudice that occurs as a result of the destruction of the evidence.’” In contrast, as the Eighth Circuit pointed out, in this case where the parties had diversity, and a question remained as to whether state or federal spoliation laws were applicable, federal law requires “a finding of intentional destruction indicating a desire to suppress the truth” in order to impose sanctions.

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eDiscovery Trends: iDiscovery
 eDiscovery Trends: iDiscovery 150 150 CloudNine

Yesterday was a day that tech enthusiasts and ordinary people alike had circled on their calendar since it was confirmed as the date of Apple’s press event to unveil the iPhone5. Apple proudly boasted that it had sold 400 million iOS devices by the end of June of this year, which can in part be attributed to the smoothly operating software running on their devices. Advances in mobile high tech have made these portable computers accessible and their presence inescapable even among late adopters. What is simple and intuitive from a user standpoint, however, can prove challenging and fickle to a computer forensics expert.

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eDiscovery Best Practices: Repairing a Corrupted Outlook PST File
 eDiscovery Best Practices: Repairing a Corrupted Outlook PST File 150 150 CloudNine

We like to believe that there will never be any problems with the data that we preserve, collect and process for eDiscovery purposes. Sometimes, however, critical data may be difficult or impossible to use. Perhaps key files are password protected from being opened and the only way to open them is to “crack” the password. Or, perhaps a key file may be corrupted. If that file is an Outlook Personal Storage Table (PST) file, that file corruption could literally make tens of thousands of documents unavailable for discovery unless the file can be repaired.

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eDiscovery Case Law: Social Media Is No Different than eMail for Discovery Purposes
 eDiscovery Case Law: Social Media Is No Different than eMail for Discovery Purposes 150 150 CloudNine

In Robinson v. Jones Lang LaSalle Americas, Inc., Oregon Magistrate Judge Paul Papak found that social media is just another form of electronically stored information (ESI), stating “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms. I therefore fashion a single order covering all these communications.”

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