Notable Articles in E-Discovery July 2013

Top 5 e-Discovery Risks for 2013 (Mike Warnecke, Corporate Compliance Insights)

"Overpaying:  All five top e-Discovery risks for 2013 fall under this one theme.  The risk of paying too much arises from failing to take sufficient advantage of the competitive forces, process management techniques, software tools, opportunities for cooperation and procedural rules that are now available to reduce costs.  Below are, in the author’s view, the top five general areas where companies and law firms are not taking full advantage of their ability to reduce e-Discovery costs."

Adverse Inference Sanction for Defendant who Failed to Stop Automatic Deletion – eDiscovery Case Law (Doug Austin, eDiscovery Daily)

"In Pillay v. Millard Refrigerated Servs., Inc., No. 09 C 5725 (N.D. Ill. May 22, 2013), Illinois District Judge Joan H. Lefkow granted the plaintiff’s motion for an adverse inference jury instruction due to the defendant’s failure to stop automatic deletion of employee productivity tracking data used as a reason for terminating a disabled employee."

Can E-Discovery Violate Due Process? Part 1 (John Beisner, Jessica Miller, Jordan Schwartz,

"The escalating cost of discovery in U.S. commercial litigation has garnered a lot of attention in recent years as requests for electronic discovery have spiraled out of control, with some defendants having to pay hundreds of thousands — or even millions — of dollars to respond to discovery requests in civil litigation. As one report succinctly put it: "[o]ur discovery system is broken."1"

Big Data: The Elephant In The E-Discovery Room (Julian Ackert, Metropolitan Corporate Counsel)

"The key here is not so much that these are large, complex data sets (corporations have had massive data sets for some time now), but that there is deep value in the analyses between these huge data sets. These analyses are challenging and can be very slow when utilizing conventional database technologies. Thus, new technologies have emerged to handle the storage and relational analysis of Big Data. From an e-discovery perspective, little is known about these Big Data technologies. How will we preserve and collect the potentially relevant data? What tools can be used to process and review for privilege and responsiveness? What will production of Big Data ESI include? There are many questions that can be asked, yet not a great deal of answers to these questions today."

Chain, Chain, Chain: Chain of Custody – eDiscovery Best Practices (Doug Austin, eDiscovery Daily)

"ESI can be provided by a variety of sources and in a variety of media, so you need a standardized way of recording chain of custody for the ESI that you collect within your organization or from your clients.  At CloudNine Discovery, we use a standard form for capturing chain of custody information.  Because we never know when a client will call and ask us to pick up data, our client services personnel typically have a supply of blank forms either in their briefcase or in their car (maybe even both)."

Fishing Expedition Discovers Laptop Cast into Indian River (Ralph Losey, E-Discovery Law Today)

"There is a spot on the Indian River east of Orlando where the fish really byte. That’s because a defendant employee in a RICO case tossed her laptop into that river with millions of incriminating bits and bytes. Simon Property Group, Inc. v. Lauria, 2012 U.S. Dist. LEXIS 184638 (M.D. Fla. 2012). Defendant destroyed the evidence with that cast, but the plaintiff employer won anyway.

There are many interesting electronic discovery aspects to this bizarre case, including the use of fictitious email addresses to create fake people, phony companies, and pretend business transactions. Defendant Lynnette Lauria, a senior manager and vice-president of her real employer company, also used the cut and paste feature in PDF software. She used this feature to make it seem like her supervisor had approved service agreements with her pretend companies. She would go around electronically cutting-and-pasting the signature of her superior at Simon onto the agreements to give the false impression that they had been approved. Id. at *11."

GC’s Beware: Internal Communication Breakdowns Lead to E-Discovery Sanctions (Mike Hamilton, E-Discovery Beat)

"What would happen if an organization’s legal department fails to take any measures to suspend document retention policies that allows for key, potentially relevant electronically stored information (ESI) to be automatically deleted after receiving a demand letter and two preservation notices from a recently terminated employee? According to the court in Pillay v. Millard Refrigerated Servs. (N.D. Ill. May 22, 2013), that conduct is sanctionable. In Pillay, the court awarded a permissive adverse inference jury against the defendant for its failure to prevent the automatic deletion of relevant ESI when the defendant was clearly on notice of pending litigation."