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: "Untimely" Motion for Sanctions for Spoliation Denied
 eDiscovery Case Law: "Untimely" Motion for Sanctions for Spoliation Denied 150 150 CloudNine

A recent ruling by the US District Court of Tennessee has denied a motion for sanctions for spoliation on the grounds that the motion was “untimely.” In Am. Nat’l Prop. & Cas. Co. v. Campbell Ins., Inc., No. 3:08-cv-00604, 2011 WL 3021399 (M.D. Tenn. July 22, 2011), the plaintiff argued that the defendants’ admitted failure to preserve evidence “warrants a harsh penalty,” but the court found in favor of the defense that the motion was untimely.

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eDiscovery Trends: Same Old Story, Lawyers Struggling to “Get” eDiscovery
 eDiscovery Trends: Same Old Story, Lawyers Struggling to “Get” eDiscovery 150 150 CloudNine

A couple of days ago, Law Technology News (LTN) published an article entitled Lawyers Struggle to Get a Grasp on E-Discovery, by Gina Passarella, via The Legal Intelligencer. Noting that “[a]ttorneys have said e-discovery can eat up between 50 to 80 percent of a litigation budget”, the article had several good observations and quotes from various eDiscovery thought leaders. So, do you have a game plan for “getting” eDiscovery?

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eDiscovery Standards: How Does an Industry Get Them?
 eDiscovery Standards: How Does an Industry Get Them? 150 150 CloudNine

As discussed yesterday, there is a nascent, but growing, movement pushing for industry standards in eDiscovery. That’s something many litigators may chafe at, thinking that standards and industry benchmarks impose checklists or management processes that tell them how to do their job. But industry standards, when implemented well, provide not only a common standard of care, but can help provide a point of comparison to help drive buying decisions.

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eDiscovery Standards: Does the Industry Need Them?
 eDiscovery Standards: Does the Industry Need Them? 150 150 CloudNine

eDiscovery Daily recently ran a three part series analyzing eDiscovery cost budgeting. Cost has long been a driving force in eDiscovery decision-making, but it is just one dimension in choosing EDD services. Other industries have well-established standards for quality – think of the automotive or software industries, which have standard measures for defects or bugs. This year there has been a rising call for developing industry standards in eDiscovery to provide quality measures.

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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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