Notable Articles in E-Discovery February 2014

Sanctions Awarded when Defendant Failed to Preserve Relevant Evidence - eDiscovery Case Law (Doug Austin, eDiscovery Daily)

"In Zest IP Holdings, LLC v. Implant Direct Manufacturing, LLC., No. 10-0541-GPC(WVG), 2013 U.S. Dist. (S.D. Cal. Nov. 25, 2013), California Magistrate Judge William V. Gallo granted the Plaintiff’s motion for sanctions because parties are “required to preserve evidence relevant to litigation and to prevent spoliation.”  Judge Gallo found that the Defendant “failed to preserve multiple documents that are relevant to Plaintiff's claims with the requisite culpable state of mind to support a finding of spoliation of evidence”."

Litigation: Proposed amendments to the FRCP prioritize early and active judicial management (Cynthia Courtney & Peter Coons, Inside Counsel)

"On May 8, 2013, the Advisory Committee on Civil Rules presented recommended changes to the Federal Rules of Civil Procedure to the Standing Committee on Rules of Practice and Procedure. One of the themes that was carried forward from the 2010 Duke Conference and accordingly was stressed during the Advisory Committee’s deliberations is the need for increased early and active judicial management. As discussed below, the Committee proposed changes to three rules that have the aim of furthering that goal.

As the Advisory Committee’s report succinctly notes, “time is money.” The early stages of litigation take too long, resulting in greater expense. Delay itself undermines the goals of Rule 1. Accordingly, certain proposed changes merely shorten time frames already existing in the Rules. Other proposed changes support increased judicial management in a more qualitative, as opposed to quantitative, way."

Federal Circuit Clarifies Standard for Recovery of eDiscovery Costs (Shane Olafson, JDSUPRA)

"As many recent litigants know, the costs of eDiscovery can be enormous. Therefore, the ability torecover those costs can have a significant impact on a company’s bottom line – from tens to hundreds of thousands of dollars. In a recent case, CBT Flint Partners, LLC v. Return Path, Inc., 2013-cv-1036 (Fed. Cir. December 13, 2013), the U.S. Court of Appeals for the Federal Circuit addressed the recoverability of eDiscovery costs. This decision is important because it offers a guideline for making such determinations, and also purports to be “consistent with” other circuits that have interpreted section 1920(4)."

International E-Discovery Standards Moving Forward (Mark Michels, Law Technology News)

"At the American Bar Association, Section of Science & Technology Law, E-Discovery and Digital Evidence (EDDE) Committee’s National Institute in Tampa, Fla., Eric Hibbard provided an update on international e-discovery standards development efforts. Hibbard is coordinating the U.S. response and contributions as well as serving as a member of theInternational Organization for Standardization editing team that is developing international e-discovery standards. Hibbard is also an EDDE co-chair and the CTO of security and privacy at Hitachi Data Systems. Hibbard reported that the next significant event in the standards development process is a meeting among the international participants in Hong Kong on April 14-15."

Key e-discovery cases in January (Jay Yurkiw, Technology Law Source)

"The new year is off to a fast start with a number of decisions addressing key e-discovery issues, including a decision from the Seventh Circuit regarding the Dec. 9, 2013 sanctions order issued by the district court in the In Re Pradaxa multi-district products liability litigation and a spoliation finding against the defendants in the In Re Actos multi-district products liability litigation. There also were decisions regarding the violation of the protective order in the long-running Apple v. Samsung “big-ticket patent litigation,” the recovery of e-discovery costs, undue burden and the form of production."

Technology: Using logic to cut review costs (Andy Kraftsow, Inside Counsel)

"First-pass document review is a relatively recent phenomenon that has become increasingly common (and expensive) as the volume of email stored on corporate servers has exploded. The purpose of first-pass review is to use a less expensive labor force to take an initial look at the documents collected in order to identify those that must be looked over by the senior attorneys on the case team. No one is asking the first-pass team to make nuanced legal judgments; the goal is simply to save the case team from looking at documents that couldn’t possibly be relevant."