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 Trends: EDRM and Statistical Sampling
 eDiscovery Trends: EDRM and Statistical Sampling 150 150 CloudNine

I’ve been proud to be a member of The Electronic Discovery Reference Model (EDRM) for the past six years (all but the first year) and I’m always keen to report on activities and accomplishments of the various working groups within EDRM. Since this blog was founded, we’ve reported on several EDRM accomplishments. EDRM’s latest announcement yesterday is a new guide, Statistical Sampling Applied to Electronic Discovery, which is now available for review and comment.

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eDiscovery Case Law: No Race Tires on This Vehicle, Taxation of eDiscovery Costs Granted
 eDiscovery Case Law: No Race Tires on This Vehicle, Taxation of eDiscovery Costs Granted 150 150 CloudNine

The trend for defendants requesting plaintiffs to be responsible for eDiscovery costs when they lose is continuing. Sometimes that request is granted, at least partially, as in this case and this case. In another case, taxation of eDiscovery costs was initially granted, but then reversed due to the parties’ agreement to split the costs. Then, there’s the case of Race Tires America, Inc. v. Hoosier Racing Tire Corporation. Last May, the winning defendants were awarded $367,000 as reimbursement for eDiscovery costs. (Hoosier Daddy!) But, then in March of this year, an appellate court reversed all but $30,370 of those costs, implementing a narrow interpretation of 28 U.S.C. § 1920(4) for assigning those costs. Now, a new case addresses the issue of taxation of costs once again.

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eDiscovery Trends: Deidre Paknad on CGOC’s Information Lifecycle Governance Leader Reference Guide
 eDiscovery Trends: Deidre Paknad on CGOC’s Information Lifecycle Governance Leader Reference Guide 150 150 CloudNine

Yesterday, we talked about the Information Lifecycle Governance Leader Reference Guide from the Compliance, Governance and Oversight Council (CGOC). The guide provides a program for operationalizing an effective defensive disposal program for expired data, which is an increasingly important issue for many organizations as organizational data doubles every 18-24 months. I recently interviewed Deidre Paknad, Director of Information Lifecycle Governance (ILG) Solutions for IBM and the founder of CGOC, and asked her some questions regarding the goals for the guide, the target audience and how it fits in with other information governance initiatives in the industry.

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eDiscovery Trends: CGOC’s Information Lifecycle Governance Leader Reference Guide
 eDiscovery Trends: CGOC’s Information Lifecycle Governance Leader Reference Guide 150 150 CloudNine

With all of the recent attention on technology-assisted review and current case law related to that subject, it’s sometimes easy to forget that most sanctions are issued because of failure to preserve potentially responsive data. A sound Information Governance (aka Records Management) policy is the first step to enabling organizations to meet their preservation obligations by getting control of the data up front. One organization focused on Information Governance is the Compliance, Governance and Oversight Council (CGOC). Recently, CGOC developed a new guide for helping organizations with succeed in improving information and eDiscovery economics.

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eDiscovery Case Law: Court Grants Plaintiff’s Motion to Compel Mirror-Imaging of Defendant’s Computers
 eDiscovery Case Law: Court Grants Plaintiff’s Motion to Compel Mirror-Imaging of Defendant’s Computers 150 150 CloudNine

In approving a motion for expedited discovery in United Factory Furniture Corp. v. Alterwitz, Magistrate Judge Cam Ferenbach granted the plaintiff’s motion for a mirror-imaging order after determining the benefit outweighed the burden of the discovery, and it denied as unnecessary the plaintiff’s motion for an order to preserve evidence and a preliminary injunction from spoliation of evidence.

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eDiscovery Trends: For an Appropriate eDiscovery Outcome, Call the Master
 eDiscovery Trends: For an Appropriate eDiscovery Outcome, Call the Master 150 150 CloudNine

Special Master, that is. Last week, Fios sponsored a webcast entitled Special Masters & e-Discovery with Craig Ball, who, in addition to being a prolific contributor to continuing legal and professional education programs throughout the US (and previous thought leader interviewee on this blog) has served as court-appointed special master in 30 cases (including at least one case covered here). Not surprisingly, the webcast was very informative, reflecting Craig’s considerable experience and knowledge in having served in that role in so many cases. Here are a few highlights.

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eDiscovery BREAKING Case Law: Judge Carter Upholds Judge Peck’s Predictive Coding Order
 eDiscovery BREAKING Case Law: Judge Carter Upholds Judge Peck’s Predictive Coding Order 150 150 CloudNine

A few weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion accepting the use of computer-assisted review of electronically stored information for this case. However, on March 13, District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional objections to the ruling and in that briefing, the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind. On Friday, April 13, the plaintiffs took things a step further by formally requesting the recusal of Judge Peck. Now, Judge Carter has issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.

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eDiscovery Case Law: Is the Third Time the Charm for Technology Assisted Review?
 eDiscovery Case Law: Is the Third Time the Charm for Technology Assisted Review? 150 150 CloudNine

A few weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, Magistrate Judge Andrew J. Peck issued an opinion making it the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case. Or, so we thought. Now, the plaintiff has objected to the plan and even formally requested the recusal of Judge Peck. Conversely, in Kleen Products LLC v. Packaging Corporation of America, et al., the plaintiffs have asked Magistrate Judge Nan Nolan to require the producing parties to employ a technology assisted review approach (referred to as “content-based advanced analytics,” or CBAA) in their production of documents for discovery purposes, and that request is currently being considered. Now, there’s a third case where the use of technology assisted review is actually being approved in an order by the judge.

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eDiscovery Careers: Achieving Success as a Non-Attorney in a Law Firm: Find/Make the Right Environment, Part 1
 eDiscovery Careers: Achieving Success as a Non-Attorney in a Law Firm: Find/Make the Right Environment, Part 1 150 150 CloudNine

Last week, I introduced a new series regarding achieving success as a non-attorney in a law firm. One key to achieving success is being in an environment that permits it. In the next posts I’m going to talk about the type of environment that fosters growth and success. Let me make it very clear, however, that I am NOT suggesting you look at these posts and decide that it’s time to call a recruiter! There are a few things you should keep in mind as you read the first few posts in this series.

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eDiscovery Best Practices: After Production, Your eDiscovery Obligations Are Not Necessarily Over
 eDiscovery Best Practices: After Production, Your eDiscovery Obligations Are Not Necessarily Over 150 150 CloudNine

While a number of attorneys have yet to still embrace and fully understand eDiscovery best practices, most at least understand that there are (since 2006) Federal Rules of Civil Procedure that address discovery of electronically stored information (ESI) and (for most, but not all) similar rules at the state level. More are learning to conduct an initial discovery conference (a.k.a., “meet and confer”) with opposing counsel to address eDiscovery requirements at the beginning of a case and more now not only understand the requirements to preserve potentially responsive data once it is clear that litigation is imminent but also how to conduct the review and production in a defensible manner. However, as noted in this Texas Lawyer article, How to Prepare for E-Discovery Supplementation Obligations (written by Ross Cunningham and published in Law Technology News), an attorney’s eDiscovery obligations are not necessarily over after production.

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