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 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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eDiscovery Case Law: Court Grants Adoption of Model Order for Patent Case
 eDiscovery Case Law: Court Grants Adoption of Model Order for Patent Case 150 150 CloudNine

Model orders to limit discovery for patent cases have gained popularity in various jurisdictions, including a recent order proposed in Texas. Here’s one patent case where the defendant sought to adopt such a model order.

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eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone
 eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone 150 150 CloudNine

This subject came up recently in discussion with one of my clients and since he was confused as to what happens when a file is deleted, I thought it would be worthwhile to discuss the topic on the blog. When a file is “deleted” (i.e., actually deleted, not just moved to the Recycle Bin), the data for that file isn’t actually removed from the disk (in most cases). Instead, the entry pertaining to it is removed from the filing system. As a result, the area on the disk where the actual data is located becomes unallocated space.

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eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?
 eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever? 150 150 CloudNine

Many of you have Android phones. I do, as well. As you may know, Android is Google’s operating system for phones and Android phones have become extraordinarily popular. However, it may be a failure in searching that ironically may cost Google billions in its litigation with Oracle over the Android operating system.

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eDiscovery Case Law: KPMG Denied in Request for “Proportionality Test” to Preservation
 eDiscovery Case Law: KPMG Denied in Request for “Proportionality Test” to Preservation 150 150 CloudNine

In Pippins v. KPMG LLP, defendant’s request for a protective order allowing it to maintain only a random sample of 100 hard drives from 2,500 laptops or to require plaintiffs to bear the cost of maintaining 2,500 hard drives was denied.

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