Key Insight: Although TAR is widely recognized as “cheaper, more efficient, and superior to keyword searching,” the responding party may decide for themselves the best method for producing their ESI. The court will not compel the utilization of TAR but may revisit the issue if Plaintiff contends the actual production is deficient.
Nature of Case: Environmental, Class Action
Electronic Data Involved: Electronic Documents Generally
Key Insight: detailed stipulation of the discovery plan
Nature of Case: violation of the securities exchange act
Electronic Data Involved: all relevant discovery
Keywords: stipulation, discovery plan
Key Insight: Denied motion to compel ESI Protocol filed 7 days after close of discovery where party made repeated demands for ESI but did not engage in establishing ESI protocol
Nature of Case: False Claims Act
Keywords: ESI Protocol
Key Insight: failing to produce ESI in native format with associated metadata.
Nature of Case: Civil action for deprivation of rights
Electronic Data Involved: PDF documents
Keywords: Metadata, native format, ESI in native format
Key Insight: whether ESI protocol order directing party to turn over potentially privileged information without chance for review proper
Nature of Case: Retaliation – NC Whistleblower Protection Act
Electronic Data Involved: Backup and deleted records located on work computers and servers
Keywords: privilege; involuntary waiver
Identified State Rule(s): N.C. R. Civ. P. 26(b)
Key Insight: whether failure of preserve documents is proof of lost relevant documents for 37(e) sanctions
Nature of Case: Strict product liability
Electronic Data Involved: deleted electronic records
Keywords: superficial cracks
Key Insight: whether terminating sanctions are appropriate where party engaged in discovery misconduct, including intentionally limiting search terms to exclude documents
Nature of Case: Trademark, Unfair Competition
Electronic Data Involved: documents
Keywords: sanctions, terminate, discovery misconduct, removed document, fraud on the court
Key Insight: whether documents lose their privilege when there was limited effort to prevent their disclosure
Nature of Case: patent infridgement and violation of trade secrets
Electronic Data Involved: privileged documents requested back via a clawback agreement
Keywords: clawback, privilege, privilege review, search terms
Key Insight: Parties did not explicitly discuss format of production. Court directed parties to meet and confer.
Nature of Case: Compensation and non-solicitation pacts
Electronic Data Involved: Production Format
Keywords: Format of production, native files
Key Insight: Plaintiffs object to dismissal of a counterclaim against them because Defendant’s desire to dismiss the claim is related to loss of relevant ESI
Nature of Case: defamation, trademark infringement
Electronic Data Involved: E-mail, instant messages
Keywords: counterclaim, motion to amend, diligent, dismissal
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