Our Insights on eDiscovery

As we noted yesterday, 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 eDiscovery cost reimbursement, form of production and international discovery issues. But, there’s many more cases to recap. As Lt. Col Frank Slade would say, “I’m just getting warmed up”. Whoo Ah!

If 2012 is like recent years, there should be plenty of interesting developments in the eDiscovery industry. However, before we look ahead to the coming year, it’s worthwhile to look back at what transpired in 2011 to see what trends began to emerge last year. And, there is no better way to do that than to review key cases during the year. eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases! We grouped those cases into common subject themes and will review them over the next few posts. Perhaps you missed some of these? Now is your chance to catch up!

Have you ever seen the video where two boxers knock each other out at the same time? That’s similar to what happened in this case. In Patel v. Havana Bar, Restaurant & Catering, a case of dueling claims of spoliation, the court imposed sanctions against both parties for failing uphold their duty to preserve relevant evidence.

While plaintiff “should have known better than to agree to search terms” that arguably resulted in recovery from unallocated space files of 65 million pages of documents for plaintiff to review for privilege, a magistrate judge in I-Med Pharma, Inc. v. Biomatrix, Inc. properly excused plaintiff from its stipulation to produce such documents after reviewing them for privilege.

An award of costs of $938,957.72, including the winning party’s agreed half share of the cost of a database or $234,702.43, was reversed in Synopsys, Inc. v. Ricoh Co. (In re Ricoh Co. Patent Litigation). While the cost of the database could have been taxed to the losing party, the agreement between the parties on cost sharing controlled the ultimate taxation of costs.

In Nacco Materials Handling Group, Inc. v. Lilly Co., the court required the defendant to bear the costs of discovery where its preservation and collection efforts were “woefully inadequate.” Parties must cooperate and voluntarily preserve, search for, and collect ESI to avoid the imposition of sanctions.