Our Insights on eDiscovery

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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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eDiscovery Case Law: Practicing Law and Discovery Services Companies Don’t Mix
 eDiscovery Case Law: Practicing Law and Discovery Services Companies Don’t Mix 150 150 CloudNine

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).

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eDiscovery Trends: Wednesday LTNY Sessions
 eDiscovery Trends: Wednesday LTNY Sessions 150 150 CloudNine

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:

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eDiscovery Trends: Tuesday LTNY Sessions
 eDiscovery Trends: Tuesday LTNY Sessions 150 150 CloudNine

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.

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eDiscovery Trends: Welcome to LegalTech New York 2012!
 eDiscovery Trends: Welcome to LegalTech New York 2012! 150 150 CloudNine

Today is the start of LegalTech New York 2012 (LTNY) and, once again, eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show. Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered. While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2012 and, which of those are evident at LTNY. After the show, we will announce the series of thought leader interviews and identify when each will be published. Mark your calendars! Sessions in the main conference tracks for today include:

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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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