Our Insights on eDiscovery

eDiscovery Trends: International Trade Commission Considers Proportionality Proposal

February 13, 2012

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.

eDiscovery Case Law: Court Rules Exact Search Terms Are Limited

February 10, 2012

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.

eDiscovery Trends: Announcing Second Annual LTNY Thought Leader Series!

February 9, 2012

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.

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

February 8, 2012

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.

eDiscovery Case Law: KPMG Loses Another Round to Pippins

February 7, 2012

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.

eDiscovery Trends: Deadly Sins of Document Review

February 6, 2012

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):

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

February 3, 2012

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.

eDiscovery Case Law: Practicing Law and Discovery Services Companies Don’t Mix

February 2, 2012

Vendors seeking to assist attorneys in offloading substantial portions of discovery-practice need to be careful not to cross the line into the unauthorized practice of law, according to a new ethics opinion by the District of Columbia Bar. On January 12, 2012, the District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law released Opinion 21-12 regarding the “Applicability of Rule 49 to Discovery Services Companies.” This opinion provides guidelines for attorneys and discovery vendors regarding supervision of large-scale document reviews and vendors’ marketing practices, which are intended to prevent the unauthorized practice of law (UPL).

eDiscovery Trends: Wednesday LTNY Sessions

February 1, 2012

As noted Monday and yesterday, LegalTech New York 2012 (LTNY) is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show. Last chance to check out the show if you’re in the New York area! The weather is great and there are still several sessions (both paid and free) available and over 225 exhibitors providing information on their products and services. Here are some of today’s sessions in the main conference tracks:

eDiscovery Trends: Tuesday LTNY Sessions

January 31, 2012

As noted yesterday, LegalTech New York 2012 (LTNY) is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show. There’s still time to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and over 225 exhibitors providing information on their products and services. Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get more than 100 hits. Yikes! More eDiscovery sessions happening! Here are some of the sessions in the main conference tracks.