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: Another Losing Plaintiff Taxed for eDiscovery Costs
 eDiscovery Case Law: Another Losing Plaintiff Taxed for eDiscovery Costs 150 150 CloudNine

As noted yesterday and back in May, prevailing defendants are becoming increasingly successful in obtaining awards against plaintiffs for reimbursement of eDiscovery costs. An award of costs to the successful defendants in a patent infringement action included $64,295 in costs for conversion of data to TIFF format and $5,950 for an eDiscovery project manager in Jardin v. DATAllegro, Inc.

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eDiscovery Case Law: Plaintiff Responsible for Taxation of eDiscovery Costs
 eDiscovery Case Law: Plaintiff Responsible for Taxation of eDiscovery Costs 150 150 CloudNine

Back in May, we discussed a case where the plaintiff, after losing its lawsuit, was responsible for repaying the defendant more than $367,000 in eDiscovery costs. In re Aspartame Antitrust Litig., a case with a “staggering” volume of discovery, successful defendants were awarded about $500,000 of their electronic discovery costs for a litigation database, imaging hard drives, keyword searches, de-duplication, and data extraction that allowed for cost-effective discovery. However, the court refused to award costs for defendants’ use of an eDiscovery program that provided visual clustering of documents and went beyond necessary keyword search and filtering functions.

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eDiscovery Project Management: “Belt and Suspenders” Approach for Effective Communication
 eDiscovery Project Management: “Belt and Suspenders” Approach for Effective Communication 150 150 CloudNine

Effective communication is a key part of effective project management, whether that communication is internally within the project team or externally with your client. It is so easy for miscommunications to occur that can derail your project and cause deadlines to be missed, or work product to be incomplete or not meet the client’s expectations. That’s why I like to employ a “belt and suspenders” approach to communication with clients.

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eDiscovery Best Practices: Search “Gotchas” Still Get You
 eDiscovery Best Practices: Search “Gotchas” Still Get You 150 150 CloudNine

A few days ago, I reviewed search syntax that one of my clients had prepared and noticed a couple of “gotchas” that typically cause problems. While we’ve discussed them on this blog before, it was over a year ago (when eDiscovery Daily was still in its infancy and had a fraction of the readers it has today), so it bears covering them again.

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LitigationWorld Pick of the Week: Could This Be the Most Expensive eDiscovery Mistake Ever?
 LitigationWorld Pick of the Week: Could This Be the Most Expensive eDiscovery Mistake Ever? 150 150 CloudNine

We’re pleased to announce that our blog post “eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?”, regarding Google’s inadvertent disclosure during its litigation with Oracle was selected as the Pick of the Week from TechnoLawyer in the November 21, 2011 issue of LitigationWorld. LitigationWorld is a free weekly email newsletter that provides helpful tips regarding electronic discovery, litigation strategy, and litigation technology. It’s also a great source of ideas for blog posts!

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eDiscovery Case Law: New York Supreme Court Requires Production of Software to Review Files
 eDiscovery Case Law: New York Supreme Court Requires Production of Software to Review Files 150 150 CloudNine

In this case, the petitioner requested records from the Department of Taxation and Finance in New York that were responsive to petitioner’s request under Freedom of Information Law (FOIL) for records related to sales tax audit. The petitioner then moved to compel production of the Department’s Audit Framework Extension software program in order to install it on his computer and view the electronic files. The petitioner’s motion was denied, not once, but twice. Would a final appeal result in compelling production of the software?

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eDiscovery Best Practices: When Preparing Production Sets, Quality is Job 1
 eDiscovery Best Practices: When Preparing Production Sets, Quality is Job 1 150 150 CloudNine

Yesterday, we talked about addressing parameters of production up front to ensure that those requirements make sense and avoid foreseeable production problems well before the production step. Today, we will talk about quality control (QC) mechanisms to make sure that the production is complete and accurate. There are a number of checks that can and should be performed on the production set, prior to producing it to the requesting party. Here are some examples.

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eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases
 eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases 150 150 CloudNine

Most of the “press” associated with eDiscovery ranges from the “left side of the EDRM model” (i.e., Information Management, Identification, Preservation, Collection) through the stages to prepare materials for production (i.e., Processing, Review and Analysis). All of those phases lead to one inevitable stage in eDiscovery: Production. Yet, few people talk about the actual production step. If Preservation, Collection and Review are the “John”, “Paul” and “George” of the eDiscovery process, Production is “Ringo”.

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eDiscovery Case Law: Produced ESI Doesn’t Need to be Categorized, Even When Voluminous
 eDiscovery Case Law: Produced ESI Doesn’t Need to be Categorized, Even When Voluminous 150 150 CloudNine

In United States v. Rubin/Chambers, Dunhill Ins. Servs., defendants’ motion to have the Government in a criminal antitrust conspiracy case organize and format its discovery production to indicate which of four categories of collusion each document or electronic file related to was denied. The Government was “under no general obligation to identify or sort Brady material within even an extremely voluminous disclosure.”

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eDiscovery Trends: Congress Tackles Costs and Burdens of Discovery
 eDiscovery Trends: Congress Tackles Costs and Burdens of Discovery 150 150 CloudNine

Sometimes, it does take an “act of Congress” to get things done. On December 13, a key subcommittee of the House of Representatives will conduct hearings regarding “The Costs and Burdens of Civil Discovery”. The 10-member House Constitution Subcommittee led by Chairman Trent Franks (R. AZ) will hear from various witnesses regarding these issues — the first such hearing since the rules were last updated in December 2006.

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