Our Insights on eDiscovery

LitigationWorld Pick of the Week: Could This Be the Most Expensive eDiscovery Mistake Ever?

December 6, 2011

We’re pleased to announce that our blog post “eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?”, regarding Google’s inadvertent disclosure during its litigation with Oracle was selected as the Pick of the Week from TechnoLawyer in the November 21, 2011 issue of LitigationWorld. LitigationWorld is a free weekly email newsletter that provides helpful tips regarding electronic discovery, litigation strategy, and litigation technology. It’s also a great source of ideas for blog posts!

eDiscovery Case Law: New York Supreme Court Requires Production of Software to Review Files

December 5, 2011

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?

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

December 2, 2011

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.

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

December 1, 2011

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”.

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

November 30, 2011

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.”

eDiscovery Trends: Congress Tackles Costs and Burdens of Discovery

November 29, 2011

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.

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

November 28, 2011

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.

eDiscovery Case Law: Facebook Content Discoverable Yet Again

November 23, 2011

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.

eDiscovery Trends: Potential ESI Sources Abound in Penn State Case

November 22, 2011

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.

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

November 21, 2011

“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.