Our Insights on eDiscovery

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Having the Right Technology is Only One Piece of the Puzzle: eDiscovery Trends
 Having the Right Technology is Only One Piece of the Puzzle: eDiscovery Trends 150 150 CloudNine

We all get the eDiscovery technology is changing – in large part because the demands of eDiscovery are changing. Amazingly enough though, it’s not just about the technology – as a recent article discusses, it’s as much about the training on how to use the technology as it is about the capabilities of the technology itself.

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Court Sanctions Plaintiff for Spoliation of Facebook Account: eDiscovery Case Law
 Court Sanctions Plaintiff for Spoliation of Facebook Account: eDiscovery Case Law 150 150 CloudNine

In Cordova v. Walmart Puerto Rico, Inc. et al., Puerto Rico District Judge Aida M. Delgado-Colon granted in part and denied in part the defendant’s motion to dismiss for fraud on the Court, denying the defendant’s request for dismissal, but imposing a sanction of adverse inference regarding the content of the plaintiff’s Facebook page and her deletion of the related account. Judge Delgado-Colon also ordered the defendant to “submit a proposed adverse-inference jury instruction to that effect before trial.”

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In Search of Cases Where Production of Databases Has Been Ordered: eDiscovery Case Law
 In Search of Cases Where Production of Databases Has Been Ordered: eDiscovery Case Law 150 150 CloudNine

Shark Week on the Discovery Channel continues, which means Case Week on the eDiscovery Channel (a.k.a., eDiscovery Daily) continues as well. Despite a few technical difficulties early on, Tom O’Connor and I had another great webcast yesterday on Key eDiscovery Case Law Review for the First Half of 2019. During the webcast, one attendee asked about case law examples where parties have been ordered to produce (or provide access to) databases in response to discovery requests, so I’ve done some research and have the results here.

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Today’s Webcast Will Help You Learn About Key eDiscovery Case Law in 2019 (so far) and How it Affects You: eDiscovery Webcasts
 Today’s Webcast Will Help You Learn About Key eDiscovery Case Law in 2019 (so far) and How it Affects You: eDiscovery Webcasts 150 150 CloudNine

Shark Week on the Discovery Channel continues, which means Case Week on the eDiscovery Channel (a.k.a., eDiscovery Daily) continues as well. So far, 2019 has been another interesting year with notable and important case law decisions related to eDiscovery best practices. What do you need to know about the cases to avoid mistakes made by others and save time and money for your clients? In today’s webcast, you can catch up on twenty-two (!) cases from the first half of the year and find out what they mean to you!

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Court Recommends Finding of Intent to Deprive for Defendant’s Lost Text Messages: eDiscovery Case Law
 Court Recommends Finding of Intent to Deprive for Defendant’s Lost Text Messages: eDiscovery Case Law 150 150 CloudNine

In NuVasive, Inc. v. Kormanis, North Carolina Magistrate Judge L. Patrick Auld recommended that, “because the record supports but does not compel a ‘finding that [Defendant Kormanis] acted with the intent to deprive [Plaintiff] of the [lost text messages’] use in the litigation, the Court submit that issue to the ‘jury, [with] the [C]ourt’s instruction[s] mak[ing] clear that the jury may infer from the loss of the [text messages] that [they were] unfavorable to [Defendant Kormanis] only if the jury first finds that [he] acted with the intent to deprive [Plaintiff] of the[ir] use in the litigation’”.

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Court Denies Defendant’s Motion to Compel Production of Documents and Metadata: eDiscovery Case Law
 Court Denies Defendant’s Motion to Compel Production of Documents and Metadata: eDiscovery Case Law 150 150 CloudNine

In Washington v. GEO Group, Inc., Washington District Judge Robert J. Bryan denied the defendant’s Motion to Compel Production of Documents and Metadata, ruling that the defendant “fails to identify a specific response for production to which the State did not respond”, that the defendant “has not shown that the [metadata] is relevant and proportional to the needs of the case” and that the “the parties have not met and conferred as to this recent log as required under Fed. R. Civ. P. 37(a)(1).”

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Despite Protective Order, Court Orders Plaintiff to Produce Source Code and Log File Printouts: eDiscovery Case Law
 Despite Protective Order, Court Orders Plaintiff to Produce Source Code and Log File Printouts: eDiscovery Case Law 150 150 CloudNine

In Opternative, Inc. v. Jand, Inc., New York Magistrate Judge Sarah Netburn granted in part and denied in part the defendant’s motion to compel the plaintiff to produce printouts of two files of source code, a printout of a log file, and a listing of directories and files. Judge Netburn ordered the plaintiff to produce the source code and log file printouts requested, but not the file directory listing, choosing to reserve judgment on that for the time being.

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Production is the “Ringo” of the eDiscovery Phases: eDiscovery Throwback Thursdays
 Production is the “Ringo” of the eDiscovery Phases: eDiscovery Throwback Thursdays 150 150 CloudNine

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, the Production phase is still the “Ringo” of eDiscovery phases, not talked about enough – even though it’s arguably the most crucial step of all.

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No Proof of Intent to Deprive Means No Adverse Inference Sanction: eDiscovery Case Law
 No Proof of Intent to Deprive Means No Adverse Inference Sanction: eDiscovery Case Law 150 150 CloudNine

In DriveTime Car Sales Company, LLC v. Pettigrew, Judge George C. Smith granted in part and denied in part the plaintiff’s motion for spoliation sanctions against defendant Pauley Motor, denying the plaintiff’s request for an adverse inference sanction by ruling that “DriveTime has not sufficiently demonstrated that Pauley Motor acted with the requisite intent” when Bruce Pauley failed to take reasonable steps to preserve text messages when he switched to a different phone. Judge Smith did “order curative measures under Rule 37(e)(1)”, allowing the plaintiff to “introduce evidence at trial, if it wishes, of the litigation hold letter and Pauley Motor’s subsequent failure to preserve the text messages.”

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Heat Wave or Cool Front? Results of the Summer 2019 eDiscovery Business Confidence Survey: eDiscovery Trends
 Heat Wave or Cool Front? Results of the Summer 2019 eDiscovery Business Confidence Survey: eDiscovery Trends 150 150 CloudNine

It’s that time again!  I’m here to cover the results of the Summer 2019 eDiscovery Business Confidence Survey, published (as always) on Rob Robinson’s terrific Complex Discovery site.  So, how confident are individuals working in the eDiscovery ecosystem in the business of eDiscovery?  Let’s see. As always, Rob provides a complete breakdown of the latest…

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