Notable Articles in E-Discovery 5/15/13

E-discovery: Are prevailing party costs for e-discovery vendors recoverable under 28 U.S.C. § 1920? (Brett Duker & Franklin Zemel,

"Section 1920 generally governs the taxation of costs by a prevailing party against the losing party under Federal Rule of Civil Procedure 54(d)(1). Specifically, subsection four permits the clerk or court to tax as costs “[f]ees for exemplification and costs of making copies of any materials where the copies are necessarily for use in the case.” However, the scope of what constitutes “exemplification and costs of making copies” in the context of electronic discovery is unclear and courts are divided as to the extent which Section 1920(4) allows a prevailing party to recover all of its costs for a vendor retrieving, organizing and producing electronic stored information (ESI) from its opponent. The analysis is often case specific and dependent on the district court’s interpretation of the statute."

DUKE Conference on TAR – The Experts Convene (Karl Schieneman, eDiscovery Journal)

"On April 19th, 60 invited delegates convened on Washington, DC with the Federal Rules Committee to discuss Technology Assisted Review.  The object of the meeting was to have the delegates give their perspectives on whether the Rules currently being readied for public comment should incorporate changes that take into account the unique needs of TAR.  My overall conclusion is that the Duke Conference was an outstanding event and it went along way to show that attorneys need more transparency when using TAR or it becomes very hard for parties to effectively cooperate."

e-Discovery Rules on the Brink of an Overhaul (Jaclyn Jaeger, Compliance Week)

"The Federal Rules of Civil Procedure may soon be getting a major overhaul.

The United States Courts' Advisory Committee on Rules of Civil Procedure voted last week to send a slate of proposed amendments to its Standing Committee on Rules of Practice and Procedure for consideration at its meeting June 3-4 in Washington, D.C.

The proposed rules would effectively limit the scope of discovery, which is a marked departure from past amendments that have broadened discovery obligations.  While there are many open-ended questions that will need to be addressed, the proposed changes could alleviate some of the e-discovery burdens often placed on companies and their in-house counsel."

Formal Opinion 2012-2: JURY RESEARCH AND SOCIAL MEDIA (New York City Bar)

"Attorneys may use social media websites for juror research as long as no communication occurs between the lawyer and the juror as a result of the research. Attorneys may not research jurors if the result of the research is that the juror will receive a communication. If an attorney unknowingly or inadvertently causes a communication with a juror, such conduct may run afoul of the Rules of Professional Conduct. The attorney must not use deception to gain access to a juror’s website or to obtain information, and third parties working for the benefit of or on behalf of an attorney must comport with all the same restrictions as the attorney. Should a lawyer learn of juror misconduct through otherwise permissible research of a juror’s social media activities, the lawyer must reveal the improper conduct to the court."

International Standard Project for E-Discovery Approved (Steven Teppler,

"A technical committee of the International Organization for Standardization, ISO/IEC JTC 1/SC 27, gave final approval for the development of an international standard for the discovery of electronically stored information at its meeting last week hosted by the European Telecommunications Standards Institute in Sophia Antipolis, France.1 ISO standards are widely adopted and in some countries have the force and effect of law or provide substantive legal precedent."

Reasonable vs. Near Perfection: Court Rules for Tiered Predictive Coding Approach (Mike Hamilton, E-Discovery Beat)

"Some is better than none. The court in In re: Biomet M2a Magnum Hip Implant Products Liability Litigation (N.D. Indiana, April 18, 2013) agreed with this sentiment regarding the defendant’s back end e-discovery approach for employing predictive coding. The plaintiffs, a group of injured individuals, protested the defendant’s, Biomet M2a, limited use of predictive coding and urged the court to order the defendant to re-do the discovery using predictive coding from beginning. The judge in the case, Robert L. Miller, was not persuaded. He ruled that the defendant’s discovery process, which started with keyword searching, then document de-duplication and lastly predictive coding, was reasonable and thus compliant under the Federal Rules of Civil Procedure (FRCP)."