Rio Tinto PLC v. Vale S.A., —F.R.D.—, 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015)
Taking up the topic of technology-assisted review (“TAR”), Magistrate Judge Andrew Peck’s most recent opinion declares that “it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” Despite this, there remain open issues surrounding the use of TAR, including, as Magistrate Judge Peck noted, the question of “how transparent and cooperative the parties need to be with respect to the seed or training set(s).” And, while this opinion did not resolve that question (because the parties in the present case agreed to “a protocol that discloses all non-privileged documents in the control sets”), it does provide some notable commentary on the issue. Continue Reading
Comprehensive Addiction Treatment Center, Inc. v. Leslea, No. 11-cv-03417-CMA-MJW, 2015 WL 638198 (D. Colo. Feb. 13, 2015)
Plaintiffs brought a “Motion to Review Clerk’s Taxing of Costs Under F.R.C.P. 54(D)(1).” Specifically, Plaintiffs sought review of the clerk’s determination “concerning the costs taxed amount of $55,649.98, which accounts for Defendants contracting with a private consulting company, Cyopsis, to retrieve and convert ESI into a retrievable format to produce information requested by Plaintiffs.” The court held that “[b]ecause Defendants’ costs related to the electronically stored information (“ESI”) are expenses enumerated in 28 U.S.C. § 1920(4), and Plaintiffs were aware that Defendants would have to retain an outside consultant to retrieve and convert the ESI into a retrievable format, Plaintiffs’ Motion is denied.” Continue Reading
United Corp. v. Tutu Park Ltd., No. ST-2001-CV-361, 2015 WL 457853 (V.I. Jan. 28, 2015)
In December 2012, the court in this case issued a subpoena directing Kmart Corporation (“Kmart”) to produce twenty-one categories of documents and later granted Plaintiff’s motion to compel the same. Accordingly, Kmart produced responsive documentation, but not to Plaintiff’s satisfaction. Plaintiff thereafter moved for sanctions and for Kmart to be held in contempt. Concluding that Kmart made a reasonable attempt to provide responsive documentation, and acknowledging Kmart’s explanations for their inability to provide more, including the destruction of documents pursuant to their document retention policy and changes in technology, the court declined to impose sanctions or to hold Kmart in contempt. Continue Reading
Federico v. Lincoln Military Housing, LLC, No. 2:12-cv-80, 2014 WL 7447937 (E.D. Va. Dec. 31, 2014)
In this class action case involving consolidated claims for personal injury and property damage, Plaintiffs’ production of social media posts and other electronically stored information was significantly delayed and allegedly incomplete. The court declined to dismiss Plaintiffs’ case, however, where “a nearly complete record” was eventually produced, where the information was of “limited relevance” and where there was no showing of Plaintiffs’ bad faith. Instead, the court declined to allocate the $29,000 Plaintiffs spent for expert assistance and indicated it would award a portion of Defendants’ attorneys’ fees. For Plaintiffs’ failure to produce text messages, the court invoked Fed. R. Civ. P. 37(e) and declined to impose any sanctions. Continue Reading
Lord Abbett Mun. Income Fund., Inc v. Asami, No. C-12-03694 DMR, 2014 WL 5477639 (N.D. Cal. Oct. 29, 2014)
Following an order granting summary judgment in their favor, the “Board Member Defendants” notified the plaintiff that they would no longer contribute to the cost of storing 159 computers, but refused to consent to allowing Plaintiff to dispose of them, arguing that Plaintiff should be required to preserve the computers until “after the Ninth Circuit has ruled on its appeal and any trial has been completed.” The court declined to compel Plaintiff to bear the costs and burden of continuing to preserve, however, where discovery had closed, where there was no indication that the computers contained relevant information, and where the defendants had “numerous opportunities to test their belief that the computers may have evidentiary value, but [had] refused to act on them.” Continue Reading
As was previously reported on this blog, here, the California State Bar Standing Committee on Professional Responsibility and Conduct (“COPRAC”) published Proposed Formal Opinion Interim No. 11-0004, addressing “ESI and Discovery Requests,” for public comment in Spring 2014. At its December meeting, COPRAC revised that opinion in response to public comment and approved an additional 90-day comment period, ending April 9, 2015.
For more information and for a full copy of the proposed formal opinion, click here.
e-DAT Partner Julie Anne Halter will speak at K&L Gates’ Third Annual “Under the Wire” CLE Seminar in Durham, NC (with videoconference broadcast in Charlotte) on January 22, 2015. Julie Anne’s presentation will address the “Latest and Greatest on e-Discovery.”
Other topics to be addressed include: Continue Reading
By Daniel R. Miller, Bree Kelly
The civil litigation landscape is constantly changing as new laws are passed, new rules are promulgated, and new opinions are issued. As in the natural world, some areas are more prone to change than others, and the bedrock of discovery has significantly shifted in recent years. The rumblings began in earnest in the early part of this century, as judicial opinions began to address the significant challenges posed by the proliferation of electronic information in daily life. Then, in 2006, “the big one” hit, and the Federal Rules of Civil Procedure were amended to substantially address the discovery of electronically stored information (“ESI”). Eight years later, the aftershocks of that tremendous shake up continue and new fault lines have begun to emerge, providing clues—and warnings—as to where the next big shifts are likely to occur. In this article, we will identify some of those areas, including emerging standards of competence in electronic discovery, the pending amendments to the rules of civil procedure, and the continuing evolution of the use of technology in electronic discovery, and beyond.
To read the full article, click here.
We are proud to announce that we received the most votes in the ABA Journal Blawg 100’s Legal Tech category this year. We were honored to make the list and are very excited to win in our category!
As you may know, we have been blogging on the topic of e-discovery for more than ten years now, and receiving this recognition from our readers is incredibly rewarding. It is our sincere pleasure to provide this resource and we look forward to continuing this important work in the New Year, and beyond.
We would also like to say Congratulations to everyone in the 2014 Blawg 100; keep up the fantastic work!
Click here to read more about the ABA Journal’s Annual Blawg 100 list and to see the list of winners and nominees in each category.
Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014)
In this breach of contract case, the court granted in part Defendant’s motion to compel and, in light of Plaintiff’s piecemeal production (which the court had earlier cautioned against) and other discovery failures, fashioned a “new and simpler approach” to discovery, including the identification of 13 search terms/phrases to be utilized when searching “ALL [of Plaintiff’s] corporate documents, files, communications, and recordings. . .” The court also ordered the plaintiff and all counsel of record to file a sworn statement confirming its “good-faith effort to identify sources of documents; that a complete search of those sources for each of the [identified] phrases occurred; and that the search results [were] furnished to [Defendant].” Continue Reading