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: Bankruptcy Court Denies Foreign Access to Debtor's Emails
 eDiscovery Case Law: Bankruptcy Court Denies Foreign Access to Debtor's Emails 150 150 CloudNine

A Southern District of New York United States Bankruptcy Court denied access to a debtor’s emails on July 22, in a foreign request involving international eDiscovery. In re Toft, No. 11-11049 (ALG), 2011 WL 3023544 (Bankr. S.D.N.Y. July 22, 2011), the U.S. Bankruptcy Court determined that to permit a relief request from a German insolvency administrator would directly contravene the “fundamental principles” of U.S. public policy by undermining the right to privacy in electronic communications and the right of parties involved in any court order to receive notice of such proceedings and of their involvement.

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eDiscovery Trends: Cloud Covered by Ball
 eDiscovery Trends: Cloud Covered by Ball 150 150 CloudNine

What is the cloud, why is it becoming so popular and why is it important to eDiscovery? These are the questions being addressed—and very ably answered—in the recent article Cloud Cover (via Law Technology News) by computer forensics and eDiscovery expert Craig Ball, a previous thought leader interviewee on this blog. As far as the cloud’s importance to the law and to eDiscovery, he says, “the cloud is re-inventing electronic data discovery in marvelous new ways while most lawyers are still grappling with the old.”

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eDiscovery Trends: Third Party Vendors Named in McDermott eDiscovery Malpractice Case
 eDiscovery Trends: Third Party Vendors Named in McDermott eDiscovery Malpractice Case 150 150 CloudNine

You might remember eDiscovery Daily’s blog post a few weeks ago about the filing of an eDiscovery malpractice lawsuit against McDermott Will & Emery by J-M Manufacturing Co., a former client of McDermott’s. This case has struck a chord in the eDiscovery community since its filing on June 1, drawing attention to the practices and standards that are at the heart of eDiscovery and outsourced review. Now, the First Amended Complaint has revealed the third party vendors involved in the eDiscovery malpractice suit.

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eDiscovery Law: Possible Changes to the Federal Rules of Civil Procedure Affecting eDiscovery
 eDiscovery Law: Possible Changes to the Federal Rules of Civil Procedure Affecting eDiscovery 150 150 CloudNine

As reported on Law Technology News recently, a subcommittee of the Judicial Conference of the United States is preparing to make recommendations about the possibility of changes to the Federal Rules of Civil Procedure that would improve eDiscovery procedures and rules in the United States, and affect how eDiscovery is conducted abroad.

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eDiscovery Case Law: Court Upholds Sanctions for Intentional Spoliation of Unallocated Space Data
 eDiscovery Case Law: Court Upholds Sanctions for Intentional Spoliation of Unallocated Space Data 150 150 CloudNine

The Supreme Court of Delaware recently upheld the sanctions against the defendant for wiping the unallocated space on his company’s computer system, despite a court order prohibiting such destruction. In Genger v. TR Investors, LLC, No. 592,2010, 2011 WL 2802832 (Del. July 18, 2011), Arie Genger, CEO of Trans-Resources, Inc., argued that sanctions against him were unreasonable and made a motion for the court to overturn its previous decision regarding spoliation of discovery materials. Instead, after due process, the court upheld its earlier decision.

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eDiscovery Trends: OLP Response to LTN Article Regarding eDiscovery Certifications
 eDiscovery Trends: OLP Response to LTN Article Regarding eDiscovery Certifications 150 150 CloudNine

Yesterday, Law Technology News (LTN) published an article entitled E-Discovery Certification: Sham Exams?, by Patrick Oot, which questioned the validity of several of the eDiscovery certification programs that, in their words, are “sprouting up faster than dandelions in May grass”. As you can imagine, the article did not go over swimmingly with organizations that sponsor eDiscovery certification programs. One of those is The Organization of Legal Professionals (OLP). Chere Estrin is the Chairperson of the Board of Directors of the OLP. Yesterday, I interviewed her regarding the LTN article and the OLP certification program. Here is the interview.

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Working Successfully with eDiscovery and Litigation Support Service Providers: Paper is Still Important, Part 2
 Working Successfully with eDiscovery and Litigation Support Service Providers: Paper is Still Important, Part 2 150 150 CloudNine

Friday, we talked about the information you should include in a request for proposal for processing a paper discovery collection. Today we’ll review some questions you should ask of a service provider to help you to select the provider that’s the best fit for your case. Of course, you’ll ask for pricing information, if the vendor can meet your schedule requirements, and for references. In addition, here are questions to ask and information to request.

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Working Successfully with eDiscovery and Litigation Support Service Providers: Paper is Still Important
 Working Successfully with eDiscovery and Litigation Support Service Providers: Paper is Still Important 150 150 CloudNine

For several years now, the focus of our discovery efforts has been handling ESI. Paper, however, hasn’t gone away yet. And it probably won’t any time soon. People still have at least small collections of paper that need to be handled. What’s the best way to handle paper? Convert it ASAP and blend it into the rest of the collection so attorneys can do a comprehensive review of the entire universe of potentially responsive documents. That means scanning, coding, and OCR processing to enable the paper to reviewed and searched. Here’s information the vendor will need to give you accurate cost and schedule information for handling the paper portion of your collection.

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eDiscovery Case Law: Court Orders Sanctions in Response to "Callous and Careless Attitude" of Defendant in Discovery
 eDiscovery Case Law: Court Orders Sanctions in Response to "Callous and Careless Attitude" of Defendant in Discovery 150 150 CloudNine

A Special Master determined that multiple discovery failures on the part of the defendant in an indemnity action were due to discovery procedures “wholly devoid of competence, yet only once motivated by guile”. Accordingly, the court ordered sanctions against the defendant and also ordered the defendant to pay all costs associated with its discovery failures, including plaintiff’s attorney fees and costs.

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eDiscovery Budgeting, Part 3: Understanding the Elements Contributing to Cost
 eDiscovery Budgeting, Part 3: Understanding the Elements Contributing to Cost 150 150 CloudNine

We’ve spent some time in Part 1 and Part 2 of this series discussing the factors and assumptions that go into eDiscovery budgeting, but what about the concrete eDiscovery process itself? In addition to understanding the factors that go into budgeting, it’s important to recognize the elements that contribute to eDiscovery costs. There are five primary factors that contribute to the costs of eDiscovery in progress.

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