Our Insights on eDiscovery

As noted in ABA Journal, Greenberg Traurig and its client, TD Bank, have received sanctions in Coquina Investments v. Rothstein for a “pattern of discovery abuses before, during, and after trial”. As U.S. District Judge Marcia Cooke noted, “it often times appears that this litigation was conducted in an Inspector Clouseau-like fashion. However, unlike a Pink Panther film, there was nothing amusing about this conduct and it did not conclude neatly.”

In Omogbehin v. Cino, the plaintiff claimed that the District Court erred in denying his motion for spoliation sanctions and appealed to the US Third Circuit Court of Appeals, but lost as the appellate court upheld the rulings by the district judge and magistrate judge.

Last week, we discussed the new book by Laura A. Zubulake, the plaintiff in probably most famous eDiscovery case ever (Zubulake vs. UBS Warburg), entitled Zubulake’s e-Discovery: The Untold Story of my Quest for Justice. I also conducted an interview with Laura last week to get her perspective on the book, including her reasons for writing the book seven years after the case ended and what she expects readers to learn from her story.

Here is yet another case of inadvertently disclosed privileged documents. In Blythe v. Bell, North Carolina Business Superior Court Judge James L. Gale denied a motion for an order compelling the return of privileged documents inadvertently disclosed by the defendants, ruling that privilege had been waived on those documents.

In the 22 months since this blog began, we have published 133 posts related to eDiscovery case law. When discussing the various case opinions that involve decisions regarding to eDiscovery, it’s easy to forget that there are real people impacted by these cases and that the story of each case goes beyond just whether they preserved, collected, reviewed and produced electronically stored information (ESI) correctly. A new book, by the plaintiff in the most famous eDiscovery case ever, provides the “backstory” that goes beyond the precedent-setting opinions of the case, detailing her experiences through the events leading up to the case, as well as over three years of litigation.

In Apple Inc. v. Samsung Elecs. Co., California Magistrate Judge Paul S. Grewal stated last week that jurors can presume “adverse inference” from Samsung’s automatically deletion of emails that Apple requested in pre-trial discovery.

As reported by The Wall Street Journal, Twitter plans to appeal a court order requiring the company to produce messages posted by Malcolm Harris, an Occupy Wall Street activist facing criminal charges. He was one of more than 700 people arrested last October when demonstrators marched onto the Brooklyn Bridge roadway.