Our Insights on eDiscovery

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eDiscovery Trends: Scanning May No Longer Be Cool, But it’s Still Necessary
 eDiscovery Trends: Scanning May No Longer Be Cool, But it’s Still Necessary 150 150 CloudNine

Frankly, I thought the fax machine would have been retired by now. So many documents are generated electronically these days that I would have expected that most businesses would not only accept contracts and other documents via email but also no longer support fax receipt of those same documents. But, many business not only still receive faxes, some still only accept faxes for key documents (or require you to hand deliver). Likewise, most documents generated these days (as much as 99%) are never printed. Yet, I’m still surprised how many cases still have hard copy documents that require scanning.

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eDiscovery Best Practices: When Litigation Hits, The First 7 to 10 Days is Critical
 eDiscovery Best Practices: When Litigation Hits, The First 7 to 10 Days is Critical 150 150 CloudNine

When a case is filed, several activities must be completed within a short period of time (often as soon as the first seven to ten days after filing) to enable you to assess the scope of the case, where the key electronically stored information (ESI) is located and whether to proceed with the case or attempt to settle with opposing counsel. Here are several of the key early activities that can assist in deciding whether to litigate or settle the case.

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eDiscovery Best Practices: Judge Facciola Discusses Competency and Ethics
 eDiscovery Best Practices: Judge Facciola Discusses Competency and Ethics 150 150 CloudNine

As noted in Law Technology News, eDiscovery vendor iConect hosted a free webinar last week entitled “Duty of Competency and E-Discovery”, in which Joshua Gilliland, author of Bow Tie Law’s Blog and founder of legal iPad app developer Majority Opinion, discussed ethics and eDiscovery with Magistrate Judge John M. Facciola of the United States District Court for the District of Columbia.

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eDiscovery Milestones: 100,000 Visits!
 eDiscovery Milestones: 100,000 Visits! 150 150 CloudNine

While it may not be “billions and billions served” like McDonalds nor quite as electrifying as 1.21 jigawatts, we’re proud to announce that yesterday eDiscoveryDaily reached the 100,000 visit milestone! As of this morning, we have had 100,160 visits to the site (reading 447 posts). On behalf of everyone at CloudNine Discovery who has worked on the blog over the last 21+ months, thanks to all of you who read the blog every day! In addition, thanks to the other publications that have picked up and either linked to or republished our posts! We really appreciate the support! Now, on to 200,000!

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eDiscovery Case Law: “Naked” Assertions of Spoliation Are Not Enough to Grant Spoliation Claims
 eDiscovery Case Law: “Naked” Assertions of Spoliation Are Not Enough to Grant Spoliation Claims 150 150 CloudNine

In Grabenstein v. Arrow Electronics, Inc., Colorado Magistrate Judge Kristen L. Mix denied the plaintiff’s motion for sanctions, finding that their claims of spoliation were based on “naked” assertions that relevant eMails must exist even though the plaintiff could not demonstrate that such other eMails do or did exist. The motion was also denied because the plaintiff could not establish when the defendant had deleted certain eMail messages, thereby failing to prove claims that the defendant violated its duty to preserve electronic evidence. Judge Mix noted that sanctions are not justified when documents are destroyed in good faith pursuant to a reasonable records-retention policy, if that’s prior to the duty to preserve such documents.

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eDiscovery Trends: Costs, Outside Counsel and Vendor Performance Chief Among GC Concerns
 eDiscovery Trends: Costs, Outside Counsel and Vendor Performance Chief Among GC Concerns 150 150 CloudNine

A survey was recently conducted by eDiscovery Solutions Group (eDSG) that of Global 250 General Counsel on various aspects of eDiscovery processes and concerns regarding eDiscovery. The results were summed up in a post in the blog, The eDiscovery Paradigm Shift, written by Charles Skamser. With a little over half (127 out of 250 organizations or 51%) responding, the post noted some interesting findings with regard to how organizations handle various eDiscovery tasks and their concerns regarding the process overall.

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eDiscovery Best Practices: Documentation is Key to a Successful Discovery Effort
 eDiscovery Best Practices: Documentation is Key to a Successful Discovery Effort 150 150 CloudNine

We like to point out good articles about eDiscovery on this blog to keep our readers aware of trends and best practices. I recently read an article on InsideCounsel titled E-discovery: Memorializing the e-discovery process, written by Alvin Lindsay, which had some good specific examples of where good documentation is important to prevent sanctions and save litigation costs.

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eDiscovery Case Law: There’s a New Sheriff in Town – Judge Facciola
 eDiscovery Case Law: There’s a New Sheriff in Town – Judge Facciola 150 150 CloudNine

In Taydon v. Greyhound Lines, Inc., District of Columbia Magistrate Judge John Facciola laid down the law to the parties in the case requiring cooperation on eDiscovery issues after “[t]he filing of forty-page discovery motions accompanied by thousands of pages of exhibits” and made it clear that the parties would be expected to “meet and confer in person in a genuine, good faith effort to plan the rest of 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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