Our Insights on eDiscovery

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.

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.

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.

As we noted the past three days, eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases! Yesterday, we looked back at cases related to discovery of social media. One final set of cases to review. The topic with the largest number of case law decisions (by far!) related to eDiscovery are those related to sanctions and spoliation issues (over a third of the total cases we reviewed). Here they are. As you’ll see, sanctions requested are not always granted. Then again, sometimes both sides get sanctioned!

As we noted the past two days, eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases! Yesterday, we looked back at cases related to privilege & inadvertent disclosures, proportionality and eDiscovery service disputes, including the notable McDermott Will & Emery eDiscovery malpractice case. But, we still have more cases to review. So, let’s keep going!