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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eDiscovery Case Law: Judge Peck Denies Recusal Motion in Da Silva Moore
 eDiscovery Case Law: Judge Peck Denies Recusal Motion in Da Silva Moore 150 150 CloudNine

It’s been a few weeks since we heard anything from the Da Silva Moore case. If you’ve been living under a rock the past few months, Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion in this case in February making it one of the first cases to accept the use of computer-assisted review of electronically stored information (“ESI”). However, the plaintiffs objected to the ruling and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind and ultimately formally requested the recusal of Judge Peck. Now, Judge Peck has denied that motion.

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eDiscovery Case Law: Plaintiff Compelled to Produce Mirror Image of Drives Despite Defendant’s Initial Failure to Request Metadata
 eDiscovery Case Law: Plaintiff Compelled to Produce Mirror Image of Drives Despite Defendant’s Initial Failure to Request Metadata 150 150 CloudNine

In Commercial Law Corp., P.C. v. FDIC, Michigan District Judge Sean F. Cox ruled that a party can be compelled to produce a mirror image of its computer drives using a neutral third-party expert where metadata is relevant and the circumstances dictate it, even though the requesting party initially failed to request that metadata and specify the format of documents in its first discovery request.

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eDiscovery Trends: X1 Social Discovery – Social Media Discovery for Professionals
 eDiscovery Trends: X1 Social Discovery – Social Media Discovery for Professionals 150 150 CloudNine

According to EDDUpdate.com, social media will be eclipsing email as the primary discovery resource within three years. As you can imagine, the sheer amount of content being generated is astounding. Twitter CEO Dick Costolo announced on June 6th that Twitter had broken the 400 million tweet-per-day barrier. With regard to ESI on social media networks, X1 Discovery features a solution called X1 Social Discovery, which is described as “the industry’s first investigative solution specifically designed to enable eDiscovery and computer forensics professionals to effectively address social media content.”

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State eDiscovery Rules: Pennsylvania Supreme Court Amends eDiscovery Rules, Rejects Federal Rules
 State eDiscovery Rules: Pennsylvania Supreme Court Amends eDiscovery Rules, Rejects Federal Rules 150 150 CloudNine

Last week, the Pennsylvania Supreme Court adopted amendments to the rules on how discovery of electronically stored information is handled in the state. However, the chairwoman of Pennsylvania’s Civil Procedural Rules Committee, Diane W. Perer, has expressly rejected federal law on the subject in her explanatory comment stating that, despite the adoption of the term “electronically stored information,” “there is no intent to incorporate federal jurisprudence surrounding the discovery of electronically stored information.” Instead, “[t]he treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law”.

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eDiscovery Trends: Where Does the Money Go? RAND Provides Some Answers
 eDiscovery Trends: Where Does the Money Go? RAND Provides Some Answers 150 150 CloudNine

The RAND Corporation, a nonprofit research and analysis institution recently published a new 159 page report related to understanding eDiscovery costs entitled Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery by Nicholas M. Pace and Laura Zakaras that has some interesting findings and recommendations.

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eDiscovery Case Law: Privilege Waived Because Defendants Failed to Notice “Something Had Gone Awry” with Their Production
 eDiscovery Case Law: Privilege Waived Because Defendants Failed to Notice “Something Had Gone Awry” with Their Production 150 150 CloudNine

In D’Onofrio v. Borough of Seaside Park, New Jersey Magistrate Judge Tonianne Bongiovanni denied the defendants’ motion for discovery to reclaim privileged documents that were inadvertently produced, finding that privilege was waived because the defendants failed to take reasonable measures to rectify the disclosure.

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eDiscovery Best Practices: Test Your Searches Before the Meet and Confer
 eDiscovery Best Practices: Test Your Searches Before the Meet and Confer 150 150 CloudNine

When litigation is anticipated, it’s never too early to begin collecting potentially responsive data and assessing it by performing searches and testing the results. However, if you wait until after the meet and confer with opposing counsel, it can be too late.

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eDiscovery Best Practices: Smoking Gun Shoots Blanks, Google Wins Latest Battle in “Smartphone War” with Oracle
 eDiscovery Best Practices: Smoking Gun Shoots Blanks, Google Wins Latest Battle in “Smartphone War” with Oracle 150 150 CloudNine

Despite a significant inadvertent disclosure of information during Google’s litigation with Oracle Corp., U.S. District Judge William Alsup last Thursday (May 31) dismissed claims that its Android mobile phone platform infringes Oracle’s copyrights relating to the Java computer language.

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eDiscovery Case Law: Court Allows Third Party Discovery Because Defendant is an “Unreliable Source”
 eDiscovery Case Law: Court Allows Third Party Discovery Because Defendant is an “Unreliable Source” 150 150 CloudNine

Repeatedly referring to the defendant’s unreliability and untrustworthiness in discovery and “desire to suppress the truth,” Nebraska Magistrate Judge Cheryl R. Zwart found, in Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., that the defendant avoided responding substantively to the plaintiff’s discovery requests through a pattern of destruction and misrepresentation and therefore monetary sanctions and an adverse jury instruction at trial were appropriate.

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eDiscovery Searching: Don’t Let Stop Words Stop You From Effective Searching
 eDiscovery Searching: Don’t Let Stop Words Stop You From Effective Searching 150 150 CloudNine

When providing searching assistance to my clients and reviewing their proposed list of search terms, one of the considerations I use for evaluating those terms is whether they contain any potential “stop” words that might affect their search results. Stop words (also known as noise words) are words – such as to, or, not, etc. – which are so common that they are not considered useful in searches.

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