Our Insights on eDiscovery

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eDiscovery Case Law: Predictive Coding Considered by Judge in New York Case
 eDiscovery Case Law: Predictive Coding Considered by Judge in New York Case 150 150 CloudNine

In Da Silva Moore v. Publicis Groupe, Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York ordered the parties to adopt a protocol for e-discovery that includes the use of predictive coding, perhaps the first known case where a technology assisted review approach was adopted by the court.

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eDiscovery Trends: George Socha of Socha Consulting
 eDiscovery Trends: George Socha of Socha Consulting 150 150 CloudNine

Today’s thought leader is George Socha. A litigator for 16 years, George is President of Socha Consulting LLC, offering services as an electronic discovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support. George is also co-author of Apersee, an online system for selecting eDiscovery providers and their offerings and co-founder of the Electronic Discovery Reference Model (EDRM) project to establish standards within the eDiscovery industry. George has a J.D. for Cornell Law School and a B.A. from the University of Wisconsin – Madison.

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eDiscovery Trends: “Assisted” is the Key Word for Technology Assisted Review
 eDiscovery Trends: “Assisted” is the Key Word for Technology Assisted Review 150 150 CloudNine

As noted in our blog post entitled 2012 Predictions – By The Numbers, almost all of the sets of eDiscovery predictions we reviewed (9 out of 10) predicted a greater emphasis on Technology Assisted Review (TAR) in the coming year. It was one of our predictions, as well. And, during all three days at LegalTech New York (LTNY) a couple of weeks ago, sessions were conducted that addressed technology assisted review concepts and best practices. However, key to the success of any review effort, whether linear or technology assisted, is knowledge of the subject matter.

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eDiscovery Trends: International Trade Commission Considers Proportionality Proposal
 eDiscovery Trends: International Trade Commission Considers Proportionality Proposal 150 150 CloudNine

As eDiscovery costs continue to escalate, proposals to bring proportionality to the eDiscovery process have become increasingly popular, such as the model order to limit eDiscovery in patent cases proposed by Federal Circuit Chief Judge Randall Rader last year. In January, Chief Judge Rader and three members of the Council (Council Chairman Ed Reines of Weil, Tina Chappell of Intel Corporation, and John Whealan, Associate Dean of Intellectual Property Studies at the George Washington University School of Law) presented a proposal to the U.S. International Trade Commission (USITC) to streamline eDiscovery in section 337 investigations.

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eDiscovery Case Law: Court Rules Exact Search Terms Are Limited
 eDiscovery Case Law: Court Rules Exact Search Terms Are Limited 150 150 CloudNine

In Custom Hardware Eng’g & Consulting v. Dowell, the plaintiff and defendant could not agree on search terms to be used for discovery on defendant’s forensically imaged computers. After reviewing proposed search terms from both sides, and the defendant’s objections to the plaintiff’s proposed list, the court ruled that the defendant’s proposed list was “problematic and inappropriate” and that their objections to the plaintiff’s proposed terms were “without merit” and ruled for use of the plaintiff’s search terms in discovery.

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eDiscovery Trends: Announcing Second Annual LTNY Thought Leader Series!
 eDiscovery Trends: Announcing Second Annual LTNY Thought Leader Series! 150 150 CloudNine

In our efforts to continue to bring our readers perspectives from various thought leaders throughout the eDiscovery community, eDiscoveryDaily has published several thought leader interviews over the nearly 1 1/2 years since our inception. Last year at LegalTech New York (LTNY), we were able to conduct interviews with several eDiscovery industry thought leaders and announced the schedule for those interviews after the show. It appears that the LTNY Thought Leader interviews have become a tradition, as we were able to conduct interviews again with several industry thought leaders! Here are the interviews that we will be publishing over the next few weeks.

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eDiscovery Best Practices: Preparing Your 30(b)(6) Witnesses
 eDiscovery Best Practices: Preparing Your 30(b)(6) Witnesses 150 150 CloudNine

When it comes to questions and potential issues that the receiving party may have about the discovery process of the producing party, one of the most common and direct methods for conducting “discovery about the discovery” is a deposition under Federal Rule 30(b)(6). This rule enables a party to serve a deposition notice on the entity involved in the litigation rather than an individual. The notice identifies the topics to be covered in the deposition, and the entity being deposed must designate one or more people qualified to answer questions on the identified topics. Topics to be covered in a 30(b)(6) deposition can vary widely, depending on the facts and circumstances of the case. However, there are some typical topics that the deponent(s) should be prepared to address.

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eDiscovery Case Law: KPMG Loses Another Round to Pippins
 eDiscovery Case Law: KPMG Loses Another Round to Pippins 150 150 CloudNine

As discussed previously in eDiscovery Daily, KPMG sought a protective order in Pippins v. KPMG LLP to require the preservation of only a random sample of 100 hard drives from among those it had already preserved for this and other litigation or shift the cost of any preservation beyond that requested scope. Lawyers for Pippins won a ruling last November by Magistrate Judge James Cott to use all available drives and Judge Cott encouraged the parties to continue to meet and confer to reach agreement on sampling. However, the parties were unable to agree and KPMG appealed to the District Court. Last Friday, District Court Judge Colleen McMahon upheld the lower court ruling.

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eDiscovery Trends: Deadly Sins of Document Review
 eDiscovery Trends: Deadly Sins of Document Review 150 150 CloudNine

With all of the attention on Technology Assisted Review (TAR) at last week’s LegalTech New York (LTNY) show, you would think that no one is conducting manual review anymore. However, manual review is still a key part of an effective review process where technology is used to identify potentially responsive and privileged ESI before the manual review process enables the final determinations to be made. There was an interesting article this past week in Texas Lawyer (via Law Technology News) by Dalton Young that focuses on the “don’ts”. As review is the most expensive phase of the eDiscovery process and legal budgets are stretched to the limit, here are the seven deadly sins of document review (along with a few of my observations):

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eDiscovery Case Law: Burn Your Computer and the Court Will Burn You
 eDiscovery Case Law: Burn Your Computer and the Court Will Burn You 150 150 CloudNine

In Evans v. Mobile Cnty. Health Dept., Alabama Magistrate Judge William Cassady granted a motion for sanctions, including an adverse inference instruction, where the plaintiff had burned and destroyed her computer that she used during the time she claimed she was harassed.

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