Notable Articles in e-Discovery

Judge Allows Man to Probe Alleged Assailant's Facebook Page (Ben Present)

"A Montgomery County judge has allowed a man claiming he was sucker-punched during a work-sponsored soccer game to investigate the Facebook page of his alleged attacker, ostensibly to find information to bolster his civil lawsuit...The decision brings the Law Weekly's tally to five cases where a Pennsylvania judge denied discovery and four in which a Facebook probe was allowed."

How social media is used in litigation (Rebekah Smith)

"'A great deal of valuable information about individuals and corporations can be determined from what people put on their social media sites such as Twitter, Facebook, LinkedIn and blogs,' says Rebekah Smith, CFFA, CPA, CVA, director of financial advisory services at GBQ Consulting LLC."

Company’s Inadequate Preservation and Collection Efforts Require Company to Shoulder Costs of Forensic Analysis of Computers and Mirror-Imaging of Hard Drives (Kathy Trawinski)

"e-Lesson Learned: To fulfill the duty to preserve relevant evidence, companies must take a number of affirmative steps to preserve, search for, and collect ESI. Upon receiving a complaint, companies should take immediate action to preserve electronic data, and should issue a company-wide litigation hold. Simply circulating a litigation hold letter to a small number of employees is insufficient to fulfill the duty to preserve of evidence."

Da Silva Moore + Kleen = It’s All About the Math (Karl Schieneman)

"The Da Silva Moore plaintiffs are comfortable that predictive coding works better than key word searching.  What they are not comfortable with is how they can be sure they received the relevant documents and that is what is at the heart of their debate over the size of the sampling to be done to validate the process.  TheKleen plaintiffs want predictive coding to be used because they know identifying key words in an antitrust case is really hard to do.  They believe their best chance to find the relevant ESI they hope to find is to use some form of predictive coding across a wide number of data sources and custodians.  The key theme here with both parties is a lack of comfort from parties receiving the ESI on what they are receiving and a desire to receive what they are entitled to."

DOJ Guidelines for ESI in Federal Criminal Cases (BLLAWG)

"As of February 2012, the Department of Justice (in conjunction with the Administrative Office of the U.S. Courts and the Joint Working Group on Electronic Technology in the Criminal Justice System) has officially released a set of best practices for ESI discovery in federal criminal cases. These protocols were drafted and negotiated by JETWG over an 18 month period and will hopefully facilitate cost effective, efficient, and predictable ESI discovery. The rules will also provide a much needed framework for the e-discovery process which has, up until now, been left to individual courts and criminal lawyers. Especially in corporate and white collar investigations, the ESI that must be discovered is often overwhelming in both volume and complexity; the guidelines should help bring order to this chaos."

Notable Articles in E-Discovery

Lessons Learned From Predictive Coding in 'Da Silva Moore'  (Rebecca N. Shwayri)

"In Monique Da Silva Moore v. Publicis Groupe & MSL Group, Case No. 11-cv-01279 (S.D.N.Y. Feb. 24, 2012), U.S. Magistrate Judge Andrew J. Peck for the U.S. District Court for the Southern District of New York endorsed the use of predictive coding to locate electronically stored information in a document-intensive, employment discrimination case involving 3 million emails. This is the first case to date that endorses a protocol for the use of predictive coding to locate documents relevant to litigation in ESI."

New Methods for Legal Search and Review (Ralph Losey)

"New systems of e-discovery are emerging that are designed for today’s digital world. Unlike most existing e-discovery systems, they are not mere adaptations of old paper discovery ways. The new methods use an entirely new collaborative approach and technologies, exemplified by predictive coding software. Although this paradigm shift in discovery is just starting, many of the contours of the new methods are already apparent."

A Search Terms Gam (Josh Gilliland)

"Determining search terms can sink into a voyage on the Pequodhunting a white whale. If a party obsesses over search terms, they may find themselves quoting Captain Ahab as they sink in an over-inclusive ocean of electronically stored information."

Disclosing Novel Document Review Methods (Robert Trenchard, Steven Berrent)

"Before the advent of large-scale e-discovery, lawyers had no need to disclose how they planned to review documents for responsiveness and privilege. Everyone knew there was only one way to do it. A human being looked at each record. But as e-discovery has mushroomed, new methods have been adopted to review large datasets without people personally examining every record. Such methods range from simple keyword searching, to concept grouping, to sophisticated "predictive coding."^1"

eDiscovery History: A Look Back at Zubulake (Doug Austin)

"Those of us who have been involved in litigation support and discovery management for years are fully aware of the significance of the Zubulake case and its huge impact on discovery of electronic data.  Even if you haven’t been in the industry for several years, you’ve probably heard of the case and understand that it’s a significant case.  But, do you understand just how many groundbreaking opinions resulted from that case?  For those who aren’t aware, let’s take a look back."

Keyword Search Terms: How to adequately argue for alternative search parameters (Mike Hamilton)

"Within early stages of litigation, to successfully negotiate and object to discovery parameters, such as keyword search terms, parties must have a legal justification AND provide adequate evidence to support their objection. Unsupported statements and concerns about producing “an unreasonable number of irrelevant results,” or that discovery parameters are not proportional to the matter are only conclusory statements."