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: Not So Fast on Computer Assisted Review
 eDiscovery Case Law: Not So Fast on Computer Assisted Review 150 150 CloudNine

A few weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012), Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion approving of the use of computer-assisted review of electronically stored information (“ESI”) for this case, making it likely the first case to recognize that “computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.” However, last Tuesday (March 13), District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional briefing on their objections to the ruling.

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eDiscovery History: A Look Back at Zubulake
 eDiscovery History: A Look Back at Zubulake 150 150 CloudNine

Yesterday, we discussed a couple of cases within a month’s time where the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, 220 FRD 212. Those of us who have been involved in litigation support and discovery management for years are fully aware of the significance of the Zubulake case and its huge impact on discovery of electronic data. Even if you haven’t been in the industry for several years, you’ve probably heard of the case and understand that it’s a significant case. But, do you understand just how many groundbreaking opinions resulted from that case? For those who aren’t aware, let’s take a look back.

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eDiscovery Case Law: The Zubulake Rules of Civil Procedure
 eDiscovery Case Law: The Zubulake Rules of Civil Procedure 150 150 CloudNine

As noted in Law Technology News (N.Y. Appellate Division Continues to Press ‘Zubulake’ EDD Standard) recently, the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, 220 FRD 212 in two case rulings within a month’s time.

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eDiscovery Case Law: Plaintiff Not Compelled To Turn Over Facebook Login Information
 eDiscovery Case Law: Plaintiff Not Compelled To Turn Over Facebook Login Information 150 150 CloudNine

In Davids v. Novartis Pharm. Corp., No. CV06-0431, (E.D.N.Y. February 24, 2012), the Eastern District of New York ruled against the defendant on whether the plaintiff in her claim against a pharmaceutical company could be compelled to turn over her Facebook account’s login username and password.

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eDiscovery Best Practices: The Rest of the Team
 eDiscovery Best Practices: The Rest of the Team 150 150 CloudNine

When beginning a new eDiscovery project, it’s important to start by estimating the various tasks that will need to be performed and the type of personnel that will be needed. As the project unfolds, the tasks required to complete it may change, so it is important to revisit the project tasks and assignments to determine whether additional personnel are needed or if you can cut back. Yesterday, we began discussing the types of roles that could be associated with a typical eDiscovery project, here are some more.

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eDiscovery Best Practices: Who’s On Your Team?
 eDiscovery Best Practices: Who’s On Your Team? 150 150 CloudNine

When beginning a new eDiscovery project, a good place so start is to estimate the various tasks that will need to be performed and identify the type of personnel that will be needed. Every project is different and unique, so the requirements of each project must be assessed. As the project unfolds, the tasks required to complete it may change – not just in terms of tasks added, but also tasks removed if the work is deemed to be unnecessary. So, it is important to revisit the project tasks and assignments to determine whether additional personnel are needed or if you can cut back. Here are the types of roles that could be associated with a typical eDiscovery project.

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eDiscovery Humor: And Now For Something Completely Different…
 eDiscovery Humor: And Now For Something Completely Different… 150 150 CloudNine

Every now and then, it’s nice to take a break from the regular case law updates, emerging trends reports and best practices tutorials and just have a laugh. We recently published a two part interview series from LegalTech New York with Ralph Losey, who always has interesting and educational thoughts to share regarding eDiscovery. Ralph recently published a video post on his excellent blog, e-Discovery Team® entitled How Not to Cooperate in an E-Discovery Conference.

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eDiscovery Case Law: eDiscovery Violations Leave Delta Holding the Bag
 eDiscovery Case Law: eDiscovery Violations Leave Delta Holding the Bag 150 150 CloudNine

In the case In re Delta/AirTran Baggage Fee Antitrust Litig., U.S. District Judge Timothy Batten ordered Delta to pay plaintiff attorney’s fees and costs for eDiscovery issues in consolidated antitrust cases claiming Delta and AirTran Holdings, Inc. conspired to charge customers $15 to check their first bag. Noting that there was a “huge hole” in Delta’s eDiscovery process, Judge Batten reopened discovery based on defendants’ untimely production of records and indications that there was overwriting of backup tapes, inconsistencies in deposition testimony and documents, and neglect in searching and producing documents from hard drives.

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eDiscovery Law: Texas Model Order for Patent eDiscovery Now In the Public Comment Phase
 eDiscovery Law: Texas Model Order for Patent eDiscovery Now In the Public Comment Phase 150 150 CloudNine

In a blog post last October, we discussed the new model order proposed by Federal Circuit Chief Judge Randall Rader as a measure against the “excesses” of eDiscovery production. At that time, the “Model Order on E-Discovery in Patent Cases” had been unanimously voted on by the Federal Circuit Advisory Council and, as a result, could significantly alter the way discovery materials are used in such cases. This version of the model order is included in proposed local rule amendment GO-12-06 for the Eastern District of Texas. The amendment has been approved by the judges of the district, subject to public comment, the deadline for which is March 23, a little over two weeks from now.

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eDiscovery Case Law: At The Eleventh Hour, Encrypted Hard Drive Is Decrypted
 eDiscovery Case Law: At The Eleventh Hour, Encrypted Hard Drive Is Decrypted 150 150 CloudNine

In our previous post regarding the case U.S. v. Fricosu, Colorado district judge Robert Blackburn ruled that Ramona Fricosu must produce an unencrypted version of her Toshiba laptop’s hard drive to prosecutors in a mortgage fraud case for police inspection. Naturally, the defendant appealed. On February 21st, the 10th U.S. Circuit Court of Appeals refused to get involved, saying Ramona Fricosu’s case must first be resolved in District Court before her attorney can appeal. She would have been required to turn over the unencrypted contents of the drive as of March 1. However, at the last minute, Colorado federal authorities decrypted the laptop.

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