Our Insights on eDiscovery

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eDiscovery Case Law: Destroy Data, Pay $1 Million, Lose Case
 eDiscovery Case Law: Destroy Data, Pay $1 Million, Lose Case 150 150 CloudNine

A federal judge in Chicago has levied sanctions against Rosenthal Collins Group LLC and granted a default judgment to the defendant for misconduct in a patent infringement case, also ordering the Chicago-based futures broker’s counsel to pay “the costs and attorneys fees incurred in litigating this motion” where plaintiff’s agent modified metadata related to relevant source code and wiped several relevant disks and devices prior to their production and where the court found counsel participated in “presenting misleading, false information, materially altered evidence and willful non-compliance with the Court’s orders.”

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Working Successfully with eDiscovery and Litigation Support Service Providers: Other Evaluation Criteria
 Working Successfully with eDiscovery and Litigation Support Service Providers: Other Evaluation Criteria 150 150 CloudNine

In the last posts in this blog series, we talked about evaluating service provider pricing, quality, scalability and flexibility. There are a few other things you may wish to look at as well, that may be especially significant for large, long-term projects or relationships.

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eDiscovery Trends: Forbes on the Rise of Predictive Coding
 eDiscovery Trends: Forbes on the Rise of Predictive Coding 150 150 CloudNine

First the New York Times with an article about eDiscovery, now Forbes. Who’s next, The Wall Street Journal? 😉 Forbes published a blog post entitled E-Discovery And the Rise of Predictive Coding a few days ago. Written by Ben Kerschberg, Founder of Consero Group LLC, it gets into some legal issues and considerations regarding predictive coding that are interesting. For some background on predictive coding, check out our December blog posts.

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eDiscovery Best Practices: Does Size Matter?
 eDiscovery Best Practices: Does Size Matter? 150 150 CloudNine

I frequently get asked how big does an ESI collection need to be to benefit from eDiscovery technology. In a recent case with one of my clients, the client had a fairly small collection – only about 4 GB. But, when a judge ruled that they had to start conducting depositions in a week, they needed to review that data in a weekend. Without FirstPass™, powered by Venio FPR™ to cull the data and OnDemand® to manage the linear review, they would not have been able to make that deadline. So, they clearly benefited from the use of eDiscovery technology in that case. But, if you’re not facing a tight deadline, how large does your collection need to be for the use of eDiscovery technology to provide benefits?

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eDiscovery Best Practices: Is Disclosure of Search Terms Required?
 eDiscovery Best Practices: Is Disclosure of Search Terms Required? 150 150 CloudNine

I read a terrific article a couple of days ago from the New York Law Journal via Law Technology News entitled Search Terms Are More Than Mere Words, that had some interesting takes about the disclosure of search terms in eDiscovery. The article was written by David J. Kessler, Robert D. Owen, and Emily Johnston of Fulbright & Jaworski. The primary emphasis of the article was with regard to the forced disclosure of search terms by courts.

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Working Successfully with eDiscovery and Litigation Support Service Providers: Capacity, Scalability, and Flexibility
 Working Successfully with eDiscovery and Litigation Support Service Providers: Capacity, Scalability, and Flexibility 150 150 CloudNine

In the last couple of blogs in this series, we talked about evaluating service-provider pricing and quality. The highest-quality, fairest-priced vendor is of no use to you, however, if they can’t get your work done by when you need it. And, unfortunately, it’s not as straightforward as telling them what you have, what you need, and by when you need it. Early in an ediscovery project, you are in a world of “unknowns”. You are working with assumptions and best guesses, and the only thing you know for sure is that things will change. One thing, however, most likely won’t change: your schedule.

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eDiscovery Best Practices: What is “Reduping?”
 eDiscovery Best Practices: What is “Reduping?” 150 150 CloudNine

As emails are sent out to multiple custodians, deduplication (or “deduping”) has become a common practice to eliminate multiple copies of the same email or file from the review collection, saving considerable review costs and ensuring consistency by not having different reviewers apply different responsiveness or privilege determinations to the same file. Deduping can be performed either across custodians in a case or within each custodian. Everyone who works in electronic discovery knows what “deduping” is. But how many of you know what “reduping” is?

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eDiscovery Daily Celebrates its “Sixmonthiversary”
 eDiscovery Daily Celebrates its “Sixmonthiversary” 150 150 CloudNine

Six months ago yesterday, eDiscovery Daily was launched. At the time of our launch, we pondered whether we were crazy to commit to a daily blog (albeit restricted to business days). But, I guess it’s a sign of how much the eDiscovery industry has grown in that there has not been a shortage of topics to address; instead, the challenge has been selecting which topics to address. And, so far, we haven’t missed a business day yet (knock on wood!).

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eDiscovery Case Law: Read Inadvertent Email, Get Disqualified from Case
 eDiscovery Case Law: Read Inadvertent Email, Get Disqualified from Case 150 150 CloudNine

Lesson of the day: When you receive an inadvertently sent privileged email, read it and don’t disclose receipt of it, you can get kicked off the case. In Terraphase Engineering, Inc., et al. v. Arcadis, U.S., Inc, the court disqualified defendant’s in-house and outside counsel for their handling of a disputed privileged email that was inadvertently sent by the plaintiffs’ counsel to the defendant and shared with defendant’s outside counsel.

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eDiscovery Case Law: Deliberately Produce Wrong Cell Phone, Get Sanctioned
 eDiscovery Case Law: Deliberately Produce Wrong Cell Phone, Get Sanctioned 150 150 CloudNine

In Moreno v. Ostly, the California Court of Appeals affirmed the trial court’s award of monetary sanctions imposed against the plaintiff and her law firm in the amount of $13,500 for counsel and plaintiff’s discovery misconduct related to the preservation of text messages.

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