Notable Articles in E-Discovery August -September 2013

An overview of proposed e-discovery amendments to the Federal Rules of Civil Procedure (ACEDS)

"The following is a dispatch from the Sedona Conference Norman Report webcast. The program highlighted proposed ESI amendments to the Federal Rules of Civil Procedure, reviewed recent social media cases, and addressed technology assisted review and proportionality. This and subsequent posts in the series will break down each of those elements."

Do We Have A Social Media Records Management Problem?  (Barry Murphy, eDiscovery Journal)

"The data from eDJ’s social experience survey (we call it “social experience” so as to go beyond just social media and include to other methods of collaboration that allow people to socialize information) show that companies are using social technologies including email, instant messaging, and internal and external social networks.  Outside of email, where 82% of respondents indicated having organizational usage policies, very few have prescriptive policies around the usage of these other collaboration tools."

If Production is Small, Does that Mean ESI is Being Withheld? – eDiscovery Case Law (Doug Austin, eDiscovery Daily Blog)

"In American Home Assurance Co. v. Greater Omaha Packing Co., No. 8:11CV270 (D. Neb. Sept. 11, 2013), Nebraska District Judge Lyle E. Strom ruled (among other things) that the defendants must disclose the sources it has searched (or intends to search) for electronically stored information (ESI) to the plaintiffs and, for each source, identify the search terms used.

The case arose from the sale of some raw beef trim by defendant (GOPAC) to the plaintiffs (Cargill), which the plaintiffs claimed was contaminated with the bacterium known as “E. coli 0157:H7.”  The defendants filed a counterclaim related to a New York Times article that allegedly contained false information supplied by the plaintiffs that caused the defendants to lose existing and potential customers."

Proving the Negative in Discovery Productions (Josh Gilliland, BowTieLaw)

"A requesting party has a very difficult problem when a producing party has made a very small production that the requesting party believes is deficient.

This situation quickly turns into the requesting party trying to prove a negative to the Court that a production is inadequate, without any evidence to support the argument.

However, just because a requesting party cannot prove a production is inadequate, does not mean the production is adequate."

The “All-to-Often Ignored E-Discovery Principle”: Proportionality (Mike Hamilton, E-Discovery Beat)

"Do most attorneys effectively utilize the principle of proportionality, under FRCP 26(b)(2), to limit discovery parameters? According to Judge Paul Grewal from the Northern District of California, the answer can be inferred as no. In the latest e-discovery chapter of Apple v. Samsung (N.D. Cal. Aug. 14, 2013), Judge Grewal declined to compel Apple to produce electronically stored information (ESI) that “Samsung is able to do without” based on the “all-to-often ignored discovery principle” of proportionality."

Achieving e-discovery excellence by collaborating throughout the organization, Part I (Dan Torano, InsideCounsel)

"Because of the continuing complexity of cases involving e-discovery, legal teams are required to work closely with colleagues throughout the organization. IT must be collaborated with in collecting data, and must interface with e-discovery software or service providers. Records Management, if such a department or individual exists, often holds the keys to big troves of potentially relevant data. And “line” employees, who can be potential witnesses and data custodians, must be contacted and relied upon to preserve any potentially relevant evidence."

Facebook Messages Admissible under Traditional Evidence Rules (Lisa Hasday, Litigation News)

"A witness may authenticate Facebook messages through testimony alone that the messages are what they purport to be, the Mississippi Court of Appeals held in a recent decision [PDF]. The court also found that the Facebook messages that are automatically generated are not hearsay because they are not statements made by a person. The ruling continues the trend toward subjecting social media posts to traditional evidentiary principles."

How Big is Your ESI Collection, Really? – eDiscovery Best Practices (Doug Austin, eDiscovery Daily Blog)

"When I was at ILTA last week, this topic came up in a discussion with a colleague during the show, so I thought it would be good to revisit here.

After identifying custodians relevant to the case and collecting files from each, you’ve collected roughly 100 gigabytes (GB) of Microsoft Outlook email PST files and loose electronic files from the custodians.  You identify a vendor to process the files to load into a review tool, so that you can perform review and produce the files to opposing counsel.  After processing, the vendor sends you a bill – and they’ve charged you to process over 200 GB!!  Are they trying to overbill you?"