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: Cut and Paste Makes the Cut as Evidence
 eDiscovery Case Law: Cut and Paste Makes the Cut as Evidence 150 150 CloudNine

In United States v. Lanzon, 2011 WL 1662901 (11th Cir. 2011), the defendant in a criminal case appealed his conviction and raised the issue of whether he prosecution properly authenticated instant messages cut-and-pasted into a Microsoft Word document.

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eDiscovery Best Practices: Usefulness of Facebook’s Self Collection Mechanism
 eDiscovery Best Practices: Usefulness of Facebook’s Self Collection Mechanism 150 150 CloudNine

We’ve written about Facebook a lot on this blog. Perhaps our most popular post regarding Facebook was regarding the self collection mechanism that they rolled out last October, which we found out about via our LegalTech interview with Craig Ball published back in March after our February interview. Now, another article has been written about the usefulness of Facebook’s self collection mechanism in the blog E-Discovery Law Alert, entitled “How Useful is Facebook’s ‘Download Your Information’ Feature in E-Discovery?”, written by Patrick V. DiDomenico.

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Working Successfully with eDiscovery and Litigation Support Service Providers: Preventing Quality Problems
 Working Successfully with eDiscovery and Litigation Support Service Providers: Preventing Quality Problems 150 150 CloudNine

It starts when you are evaluating and selecting a vendor. Based on your review of a vendor’s qualifications, procedures and technology, along with feedback you’ve received from references, make sure you select a vendor that is likely to do high quality work and that has a good track record. Once a project is underway, look at the vendor’s work to ensure it meets your expectations. This is especially important with work that is labor-intensive. In fact, there are three levels of quality control that you should be doing.

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Working Successfully with eDiscovery and Litigation Support Service Providers: Preventing Unexpected Schedule Problems
 Working Successfully with eDiscovery and Litigation Support Service Providers: Preventing Unexpected Schedule Problems 150 150 CloudNine

Of all the problems you might have to report to an attorney, the worst may be that you are going to miss a production deadline. Deadlines get missed because document or data collections are larger than expected, the task is more difficult than expected, sufficient technical resources aren’t allocated to the project, or the project simply isn’t staffed properly. Good communication up front with a vendor, and good monitoring throughout a project can minimize the chance of missing deadlines.

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eDiscovery Case Law: Written Litigation Hold Notice Not Required
 eDiscovery Case Law: Written Litigation Hold Notice Not Required 150 150 CloudNine

The Pension Committee case was one of the most important cases of 2010 (or any year, for that matter). So, perhaps it’s not surprising that it is starting to become frequently cited by those looking for sanction for failure to issue a written litigation hold. In Steuben Foods, Inc. v. Country Gourmet Foods, LLC, a U.S. District Court in the Western District of New York declined to follow the Pension Committee decision in the Southern District of New York to the extent that the Pension Committee decision held “that implementation of a written litigation hold notice is required in order to avoid an inference that relevant evidence has been presumptively destroyed by the party failing to implement such written litigation hold.”

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eDiscovery Best Practices: Does Anybody Really Know What Time It Is?
 eDiscovery Best Practices: Does Anybody Really Know What Time It Is? 150 150 CloudNine

Does anybody really know what time it is? Does anybody really care? OK, it’s an old song by Chicago (back then, they were known as the Chicago Transit Authority). But, the question of what time it really is has a significant effect on how eDiscovery is handled.

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eDiscovery Best Practices: What Are the Skeletons in Your ESI Closet?
 eDiscovery Best Practices: What Are the Skeletons in Your ESI Closet? 150 150 CloudNine

Law firms and corporations alike tend to keep data storage devices well beyond what their compliance requirements or business needs actually dictate. These so-called “skeletons in the closet” pose a major problem when the entity gets sued or subpoenaed. All that dusty data is suddenly potentially discoverable. Legal counsel can be proactive and initiate responsible handling of this legacy data by defining a new, defensible information governance process.

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eDiscovery Case Law: Facebook Did Not Deduce That They Must Produce
 eDiscovery Case Law: Facebook Did Not Deduce That They Must Produce 150 150 CloudNine

In this case, United States Magistrate Judge Howard Lloyd of the Northern District of California compelled Facebook to produce ESI that was previously produced in a converted, non-searchable format and further ordered Facebook not to use a third-party vendor’s online production software to merely “provide access” to it. The court’s order granting the plaintiff’s Motion To Compel Production in In re Facebook PPC Advertising Litigation, 2011 WL 1324516 (N.D.Cal. Apr. 6, 2011) addressed the importance of ESI Protocols, the requirement to produce ESI in native formats, and production of documents versus providing access to them.

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Working Successfully with eDiscovery and Litigation Support Service Providers: Preventing Unexpected Costs
 Working Successfully with eDiscovery and Litigation Support Service Providers: Preventing Unexpected Costs 150 150 CloudNine

Unfortunately, it’s just not possible to know up-front precisely what a litigation support or eDiscovery project will cost. There are too many unknowns, and, therefore, too many opportunities for surprises regarding costs. You can, however, avoid some of those surprises with good upfront communication with the vendor. Here are some steps you can take to prevent surprises and control costs.

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Working Successfully with eDiscovery and Litigation Support Service Providers: Monitoring Work and Preventing Problems
 Working Successfully with eDiscovery and Litigation Support Service Providers: Monitoring Work and Preventing Problems 150 150 CloudNine

So many law firm litigation support folks that I know have an unpleasant war story or two about a project they did with a vendor. I usually find these frustrating, because more often than not, the problems could have been avoided. Taking a few preventative steps early on, and doing a good job of monitoring project activity can make all the difference. In the next few posts in this series, we’re going to look at ways to make the projects you do with vendors run smoother.

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