Our Insights on eDiscovery

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eDiscovery Case Law: Fifth Amendment Doesn’t Extend to Encrypted Hard Drives – Or Does It?
 eDiscovery Case Law: Fifth Amendment Doesn’t Extend to Encrypted Hard Drives – Or Does It? 150 150 CloudNine

In the case U.S. v. Fricosu, Colorado district judge Robert Blackburn has ruled that a woman must produce an unencrypted version of her Toshiba laptop’s hard drive to prosecutors in a mortgage fraud case for police inspection. The woman, Ramona Fricosu, had argued that the Fifth Amendment’s privilege against self-incrimination protected her from having to disclose the password to her hard drive, which was encrypted using PGP Desktop and seized when investigators served a search warrant on her home.

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eDiscovery Trends: Small Cases Need Love Too!
 eDiscovery Trends: Small Cases Need Love Too! 150 150 CloudNine

There was an interesting article in Law Technology News from Tom O’Connor, a previous thought leader interviewee on this blog, regarding the dilemma associated with affordability of eDiscovery technology for small cases (entitled Pricing: The Small Case E-Discovery Dilemma). Even though small cases make up the overwhelming majority of cases filed and there is ESI to manage in those cases just like there is in the big cases, eDiscovery technology has historically been cost prohibitive for the cases when compared to the amount at dispute. But, there’s hope!

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Social Tech eDiscovery: Facebook Law Enforcement Policies Revisited
 Social Tech eDiscovery: Facebook Law Enforcement Policies Revisited 150 150 CloudNine

One of the very first posts we published on this blog, over 16 months ago, was a post regarding Facebook’s Subpoena Policy, describing and providing a link to Facebook’s Law Enforcement page to request information from Facebook. With numerous cases involving discovery of information on Facebook, (including six cases from this blog – all just in the past year), it seems appropriate to revisit this page to see if anything has changed. The first thing that has changed is the link itself.

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eDiscovery Case Law: Appeals Court Decides Spoliation Finding For Not Producing Originals is Bull
 eDiscovery Case Law: Appeals Court Decides Spoliation Finding For Not Producing Originals is Bull 150 150 CloudNine

In Bull v. UPS Inc., No. 10-4339 (3d Cir. Jan. 4, 2012), the Third Circuit court conceded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information”. However, it found that in this case, the District Court erred in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.

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eDiscovery Case Law: Court Dismisses Identify Theft Case Where No Harm Was Proven
 eDiscovery Case Law: Court Dismisses Identify Theft Case Where No Harm Was Proven 150 150 CloudNine

In the case Reilly v. Ceridian Corp, 11-1738 (3rd Cir. Dec. 12, 2011), the Third Circuit affirmed the district court’s dismissal of a class action against payroll processing company Ceridian for a data breach, finding that the plaintiffs case lacked merit because their alleged injuries were too speculative.

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eDiscovery Trends: Needing “Technology Assisted Review” to Write a Blog Post
 eDiscovery Trends: Needing “Technology Assisted Review” to Write a Blog Post 150 150 CloudNine

Late on a Thursday night, with a variety of tasks and projects on my plate at the moment, it seems more difficult this night to find a unique and suitable topic for today’s blog post. One thing I often do when looking for ideas is to hit the web and turn to the many resources that I read regularly to stay abreast of developments in the industry. Usually when I do that, I find one article or blog post that “speaks to me” as a topic to talk about on this blog. However, when doing so last night, I found several topics worth discussing and had difficulty selecting just one. So, here are some of the notable articles and posts that I’ve been reviewing.

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eDiscovery Trends: Making the Most of LegalTech
 eDiscovery Trends: Making the Most of LegalTech 150 150 CloudNine

It’s that time of year… LegalTech® New York is right around the corner. People are talking about it, making plans to get together, scheduling demos and meetings, and deciding which parties to attend. Newbies to the show are excited to go. More seasoned attendees are looking forward to seeing peers. It’s a great time to catch up with people and it offers a great opportunity to keep abreast of new industry trends and technology advancements. But, how do you get the most out of the show?

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eDiscovery Case Law: Court Denies Plaintiff Request For Additional Searches for Acronyms
 eDiscovery Case Law: Court Denies Plaintiff Request For Additional Searches for Acronyms 150 150 CloudNine

In the case In Re: National Association of Music Merchants, Musical Instruments and Equipment Antitrust Litigation, U.S. Magistrate Judge Louisa S. Porter considered a motion by the plaintiffs seeking to compel the defendants to run document searches containing abbreviations and acronyms identified during discovery. Ruling that the plaintiffs had “ample opportunity” to obtain this discovery earlier in the case, the court denied the motion.

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eDiscovery Trends: Sampling within eDiscovery Software
 eDiscovery Trends: Sampling within eDiscovery Software 150 150 CloudNine

A few months ago, we published a three part series regarding testing your eDiscovery searches using sampling. We discussed how to determine the appropriate sample size to test your search, using a sample size calculator (freely available on the web). We also discussed how to make sure the sample size is randomly selected (again referencing a site freely available on the web for generating the random set). We even walked through an example of how you can test and refine a search using sampling, saving tens of thousands in review costs with defensible results. Instead of having to go to all of these external sites to manually size and generate your random sample set, it’s even better when the eDiscovery ECA or review software you’re using handles that process for you.

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eDiscovery Case Law: Via Rule 45 Subpoena, Plaintiff Allowed to Search Non-Party Personal Hard Drive
 eDiscovery Case Law: Via Rule 45 Subpoena, Plaintiff Allowed to Search Non-Party Personal Hard Drive 150 150 CloudNine

A party can subpoena a nonparty to provide a personal computer for the forensic review of electronically stored information (ESI) under Rule 45 of the Federal Rules of Civil Procedure. In Wood v. Town of Warsaw, N.C., a former police chief alleged his former employer unfairly terminated him because of his age under the Age Discrimination in Employment Act. During discovery, the plaintiff sent a non-party subpoena to the former town hall manager, who the plaintiff claimed was responsible for his termination. In the subpoena, the plaintiff asked that the former town manager make his personal computer available for a search by a forensic expert using agreed-upon search terms. He also offered to pay for the cost of the search, excluding any privilege review that the town manager wanted to conduct.

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