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Electronic Discovery Law Blog

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

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

The 2014 ABA Journal Blawg 100: Vote for Your Favorites Now!

Posted in NEWS & UPDATES

The ABA Journal’s Annual Blawg 100 list was released yesterday and we are pleased to report that the Electronic Discovery Law blog was nominated in the Legal Tech category!  The public is now invited to weigh in on the nominees by voting for their favorite in each category.  To vote, click on the “Vote for your Favorites” banner below, and register to cast your vote for your favorite blogs.  The polls close on December 19, 2014.

Considering Motion to Compel, Court Asks Whether Discovery Responses have been “Fair”

Posted in CASE SUMMARIES

Finjan, Inc. v. Blue Coat Sys., Inc., No. 5:13-cv-03999-BLF, 2014 WL 5321095 (N.D. Cal. Oct. 17, 2014)

In this patent infringement case, Defendant objected to “producing custodial email from archival systems when [the Plaintiff] is not able to do the same in return.”  Plaintiff filed a motion to compel.  In assessing the motion, the court recognized potential limitations on discovery, pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii).  The court indicated that, “[r]educed to its essence, Rule 26(b)(2)(iii) [sic] requires this court to decide: have Blue Coat’s discovery responses been fair?”  In response, the court concluded that the defendant’s responses had “largely been fair, but not entirely.”  Turning specifically to the question of custodial emails, the court reasoned:

Where Blue Coat has been less than fair is with respect to archival email for its eight custodians. Blue Coat may largely be in the right that it should not have to dig through legacy systems when Finjan is unable to the same for its custodians. But one party’s discovery shortcomings are rarely enough to justify another’s. And here, at least with respect to documents mentioning Finjan—the one specific category of documents Finjan could identify that it needed from archived email—Finjan’s request is reasonable.

A full copy of the court’s opinion is available here.

Back to Basics: Court Orders Compliance with Rule 34

Posted in CASE SUMMARIES

Venture Corp. Ltd. v. Barrett, No. 5:13-cv-03384-PSG, 2014 WL 5305575 (N.D. Cal. Oct. 16, 2014)

Most lawyers (and hopefully judges) would be forgiven if they could not recite on demand some of the more obscure of the Federal Rules of Civil Procedure. Rule 80 (Stenographic Transcript as Evidence) and Rule 64 (Seizing a Person or Property) come to mind. But Rule 34 (Producing Documents, Electronically Stored Information, and Tangible Things) is about as basic to any civil case as it gets. And yet, over and over again, the undersigned is confronted with misapprehension of its standards and elements by even experienced counsel. Unfortunately, this case presents yet another example.

- Opening paragraph, Venture Corp. Ltd. v. Barrett Continue Reading

Second Circuit Vacates Conviction for Failure to Authenticate Printed Profile from “Russian equivalent of Facebook”

Posted in CASE SUMMARIES

United States v. Vayner, — F.3d —, 2014 WL 4942227 (2d Cir. Oct. 3, 2014)

In this case, the Second Circuit vacated the defendant’s conviction “on a single charge of transfer of a false identification document” upon concluding that the district court erred in admitting a printout of the defendant’s alleged profile on “the Russian equivalent of Facebook,” (“VK.com”) “because the government presented insufficient evidence that the page was what the government claimed it to be—that is, Zhyltsou’s profile page, as opposed to a profile page on the Internet that Zhyltsou did not create or control.” Continue Reading