Our Insights on eDiscovery

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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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eDiscovery Trends: The Sedona Conference International Principles
 eDiscovery Trends: The Sedona Conference International Principles 150 150 CloudNine

One of our eDiscovery predictions for 2012 was that there would be a continued focus on International eDiscovery. Multinational companies with operations in the United States are often subject both to the US civil procedure discovery rules as well as the privacy laws of the European Union and other countries where they operate. Trying to comply with both sets of rules and laws can be difficult when those rules and laws conflict. To attempt to address those conflicts, Working Group 6 of The Sedona Conference (TSC) has drafted the 2011 Public Comment Version of The Sedona Conference® International Principles on Discovery, Disclosure and Data Protection (“International Principles”).

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eDiscovery Trends: Our 2012 Predictions
 eDiscovery Trends: Our 2012 Predictions 150 150 CloudNine

Yesterday, we evaluated what others are saying and noted popular eDiscovery prediction trends for the coming year. It’s interesting to identify common trends among the prognosticators and also the unique predictions as well. But we promised our own predictions for today, so here they are. One of the nice things about writing and editing a daily eDiscovery blog is that it forces you to stay abreast of what’s going on in the industry. Based on the numerous stories we’ve read (many of which we’ve also written about), and in David Letterman “Top 10” fashion, here are our eDiscovery predictions for 2012.

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eDiscovery Trends: 2012 Predictions – By The Numbers
 eDiscovery Trends: 2012 Predictions – By The Numbers 150 150 CloudNine

With a nod to Nick Bakay, “It’s all so simple when you break things down scientifically.” The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year. I know what you’re thinking – “oh no, not another set of eDiscovery predictions!” However, at eDiscovery Daily, we do things a little bit differently. We like to take a look at other predictions and see if we can spot some common trends. Ten sets of predictions in all! Here are the trends.

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eDiscovery Case Law: Defendants Not Required to Share Costs for Plaintiff’s Third Party Request
 eDiscovery Case Law: Defendants Not Required to Share Costs for Plaintiff’s Third Party Request 150 150 CloudNine

In Last Atlantis Capital LLC v. AGS Specialist Partners, the plaintiffs proposed that the defendants share in the cost of obtaining data that Plaintiffs subpoenaed from third parties. The court noted that all parties “involved herein are aware that the linchpin of this entire matter” was to obtain this audit trail data for analysis. The court had also previously suggested (at a September status conference) “in an effort to accelerate this protracted litigation” that it would be “reasonable” for Defendants to aid in half the costs. Nonetheless, the court rejected the plaintiff’s proposal for cost-sharing in this case, rejecting the plaintiff arguments for doing so.

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