Our Insights on eDiscovery

Read on to learn more about the latest trends and insights in the world of digital discovery.
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eDiscovery Case Law: New York Supreme Court Requires Production of Software to Review Files
 eDiscovery Case Law: New York Supreme Court Requires Production of Software to Review Files 150 150 CloudNine

In this case, the petitioner requested records from the Department of Taxation and Finance in New York that were responsive to petitioner’s request under Freedom of Information Law (FOIL) for records related to sales tax audit. The petitioner then moved to compel production of the Department’s Audit Framework Extension software program in order to install it on his computer and view the electronic files. The petitioner’s motion was denied, not once, but twice. Would a final appeal result in compelling production of the software?

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eDiscovery Best Practices: When Preparing Production Sets, Quality is Job 1
 eDiscovery Best Practices: When Preparing Production Sets, Quality is Job 1 150 150 CloudNine

Yesterday, we talked about addressing parameters of production up front to ensure that those requirements make sense and avoid foreseeable production problems well before the production step. Today, we will talk about quality control (QC) mechanisms to make sure that the production is complete and accurate. There are a number of checks that can and should be performed on the production set, prior to producing it to the requesting party. Here are some examples.

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eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases
 eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases 150 150 CloudNine

Most of the “press” associated with eDiscovery ranges from the “left side of the EDRM model” (i.e., Information Management, Identification, Preservation, Collection) through the stages to prepare materials for production (i.e., Processing, Review and Analysis). All of those phases lead to one inevitable stage in eDiscovery: Production. Yet, few people talk about the actual production step. If Preservation, Collection and Review are the “John”, “Paul” and “George” of the eDiscovery process, Production is “Ringo”.

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eDiscovery Case Law: Produced ESI Doesn’t Need to be Categorized, Even When Voluminous
 eDiscovery Case Law: Produced ESI Doesn’t Need to be Categorized, Even When Voluminous 150 150 CloudNine

In United States v. Rubin/Chambers, Dunhill Ins. Servs., defendants’ motion to have the Government in a criminal antitrust conspiracy case organize and format its discovery production to indicate which of four categories of collusion each document or electronic file related to was denied. The Government was “under no general obligation to identify or sort Brady material within even an extremely voluminous disclosure.”

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eDiscovery Trends: Congress Tackles Costs and Burdens of Discovery
 eDiscovery Trends: Congress Tackles Costs and Burdens of Discovery 150 150 CloudNine

Sometimes, it does take an “act of Congress” to get things done. On December 13, a key subcommittee of the House of Representatives will conduct hearings regarding “The Costs and Burdens of Civil Discovery”. The 10-member House Constitution Subcommittee led by Chairman Trent Franks (R. AZ) will hear from various witnesses regarding these issues — the first such hearing since the rules were last updated in December 2006.

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eDiscovery Trends: New York Pilot Program Requires Joint Electronic Discovery Submission for Cases Involving ESI
 eDiscovery Trends: New York Pilot Program Requires Joint Electronic Discovery Submission for Cases Involving ESI 150 150 CloudNine

On November 1, 2011, the Southern District of New York implemented a new Pilot Program for Complex Cases in “response to the federal bar’s concerns about the high costs of litigating complex civil cases.” The program is “designed to improve judicial case management of these disputes and reduce costs and delay” and will run for eighteen months.

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eDiscovery Case Law: Facebook Content Discoverable Yet Again
 eDiscovery Case Law: Facebook Content Discoverable Yet Again 150 150 CloudNine

It seems most, if not all, of the cases these days where discoverability of social media is at issue are being decided by courts in favor of the parties seeking to discover this information. Here’s another example.

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eDiscovery Trends: Potential ESI Sources Abound in Penn State Case
 eDiscovery Trends: Potential ESI Sources Abound in Penn State Case 150 150 CloudNine

Whether you’re a college football fan or not, chances are you’ve heard about the scandal associated with the allegations of serial child abuse by former Penn State football coach Jerry Sandusky. There seems to be new developments almost daily and the scandal has already cost the jobs of the university president, vice president, athletic director and the head football coach, Joe Paterno, who had been head coach since 1965 and on the coaching staff since 1950 (most of us weren’t even born yet!). Numerous lawsuits seem highly likely to arise as a result of the alleged abuse against a variety of defendants, including the university, individuals alleged to be involved in the abuse and cover-up and also the Second Mile Foundation founded by Sandusky.

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eDiscovery Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win
 eDiscovery Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win 150 150 CloudNine

“Spoliation of evidence” refers to the deliberate destruction of evidence prior to a trial. It is a rare event in civil litgation. But, spoliation of evidence was found in a case involving a personal injury lawyer in Virginia. Lawyer Matthew Murray was ordered to pay $522,000 for instructing his client to remove photos from his Facebook age. His client was ordered to pay $180,000 for obeying his instructions. A state district judge issued these sanctions in the case of Lester v. Allied Concrete Co.

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eDiscovery Best Practices: Data Mapping Doesn’t Have to be Complicated
 eDiscovery Best Practices: Data Mapping Doesn’t Have to be Complicated 150 150 CloudNine

Some time ago, we talked about the importance of preparing a data map of your organization’s data to be ready when litigation strikes. The data map itself doesn’t have to be complicated. It can be as simple as a spreadsheet (or series of spreadsheets, one for each department or custodian, depending on what level of information is likely to be requested). Here are examples of types of information that you might see in a typical data map spreadsheet.

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