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Electronic Discovery Law Blog

Legal issues, news, and best practices relating to the discovery of electronically stored information.

You Needn’t Keep Everything Forever: No Sanctions for Non-Party’s Failure to Produce because of Retention Policies, Technology Changes

Posted in CASE SUMMARIES

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

For Delayed Production of Social Media and Other ESI, Court Declines to Shift Expert Costs, Awards Attorneys’ Fees; No Sanctions for Lost Text Messages

Posted in CASE SUMMARIES

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

Applying Proportionality to Preservation, Court Grants Permission to Dispose of Computers

Posted in CASE SUMMARIES

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

State Bar of California Interim Opinion on Attorneys’ Duties in the “Handling of Discovery of [ESI]” – Comment Period Extended

Posted in NEWS & UPDATES

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-Discovery in 2015: Will You Feel The Earth Move Under Your Feet?

Posted in NEWS & UPDATES

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.

2014 ABA Journal Blawg 100: We Won! (And Thanks for Voting!)

Posted in NEWS & UPDATES

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.

Frustrated Court Crafts “New and Simpler Approach to Discovery,” Identifies Search Terms to be Utilized by Plaintiff

Posted in CASE SUMMARIES

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

Software Licensing Restrictions No Shield Against Production

Posted in CASE SUMMARIES

Pero v. Norfolk S. Ry., Co., No. 3:14-CV-16-PLR-CCS, 2014 WL 6772619 (E.D. Tenn. Dec. 1, 2014)

In this case, the court declined to require the plaintiff to view the at-issue video at Defendant’s counsel’s office or to obtain a license for the proprietary viewing software and ordered the defendant to either produce a laptop with the video loaded on it for Plaintiff’s use in the litigation or to reimburse the plaintiff for the cost of a software license.

Plaintiff, a train conductor who was allegedly injured while attempting to remove a tree that was blocking the railroad tracks, sought to compel Defendant’s production of relevant video.  Defendant stated that it “merely own[ed] a license to use the software” necessary to view the video and that providing a copy to Plaintiff would exceed the license’s scope. Instead, Defendant offered to allow Plaintiff’s counsel to view the video at Defendant’s counsel’s office or suggested that Plaintiff pay $500 to obtain his own software license.  Plaintiff moved to compel the production of a copy of the video; Defendant moved for a protective order. Continue Reading

Court Declines to Preclude “Eyes On” Review for Privilege

Posted in CASE SUMMARIES

Good v. Am. Water Works Co., Inc., No. 2:14-01374, 2014 WL 5486827 (S.D. W. Va. Oct. 29, 2014)

In this case, the parties made an effort to “craft an agreement respecting the handling of attorney-client and work product information inadvertently disclosed,” but disagreed regarding the proper procedure for identifying privileged information.  Defendants sought to “’encourage the incorporation and employment of time-saving computer-assisted privilege review, while Plaintiffs propose[d] that the order limit privilege review to what a computer can accomplish, disallowing linear (aka ‘eyes on’) privilege review altogether.’”  The court agreed with the defendants and entered an order allowing both computer-assisted and linear review, but invited the plaintiffs to file a second motion should the defendants’ methodologies result in unacceptable delays. Continue Reading