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, Law.com)

"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."

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, InsideCounsel.com)

"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, LAW.com)

"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)."