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: “Naked” Assertions of Spoliation Are Not Enough to Grant Spoliation Claims

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

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

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

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

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

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

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

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

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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