Notable Articles in E-Discovery March - April 2014

Smaller Law Firms Save Big with Cloud-Based eDiscovery - eDiscovery Trends ( Doug Austin, eDiscovery Daily)

"According to a new article in ABA Journal (Cloud-based e-discovery can mean big savings for smaller firms, written by Joe Dysart), if you are a smaller law firm, it may make more sense to “rent” your eDiscovery applications in the “cloud” rather than bring a full-fledged hardware and software solution in-house.

Dysart’s article quotes a couple of panelists from a panel session at the recent LegalTech (LTNY) conference, including panelist Alan Winchester, a partner at the New York City firm Harris Beach, who stated: 'For firms without robust IT departments, it grants them the experts to manage the technology operations and security.'"

Putting Statistics to Work in eDiscovery: Use Cases for Incorporating Statistical Sampling and Analysis (Maureen O'Neill, Discover Ready)

"By reviewing relatively small but statistically representative samples of documents from the different sources and custodians in a matter, a party can more effectively conduct early case assessment and begin to develop the case strategy. For example, sampling can enable the litigant to efficiently hone in on the sources and custodians of information most likely to be relevant. Sampling can also help a producing party assess the burdens and costs involved in accessing certain information, such as backup tapes or other offline media. An early sampling review also will provide an estimate of the “richness” or “prevalence” of populations – i.e., the percentage of responsive documents in the collection – before undertaking review, which can inform the strategy and workflow for the review."

Technology-Assisted Review and Other Discovery Initiatives at the Antitrust Division (Tracy Greer, Senior Litigation Counsel E-Discovery)

"The Division has moved to implement several discovery initiatives that have a significant impact on lawyers and their clients who are involved in Division investigations.  This paper discusses a number of those initiatives and some best practices for those involved in Division matters.

Massachusetts Court Disallows Admission of Facebook Screenshot as Evidence (John Patzakis, Next Generation eDiscovery Law & Tech)

"In yet another ruling highlighting the reckless practice of relying on mere screenshots to present social media evidence, a Massachusetts Appellate Court ruled a Facebook post submitted by the prosecution in a recent criminal case to be inadmissible as evidence. InCommonwealth v. Banas, 2014 WL 1096140 (March 21, 2014), the State introduced the Facebook post in the form of a printout of a screenshot without any additional circumstantial evidence to establish authenticity. The court explained that further information beyond the screenshot itself was required to establish a proper foundation for the Facebook post."

Using ESI Sampling to Reduce eDiscovery Costs (Phil Favro, The Core Perspective)

"The great debate in eDiscovery is generally focused on finding a way to decrease the costs and burdens associated with the discovery process. While lawyers want to find the most criticalinformation that will ideally enable their clients to prevail in litigation, they are also fixated for obvious reasons on cost reduction. Perhaps one of the best methods for identifying relevant information in a cost-effective manner is sampling. As U.S. Magistrate Judge Paul S. Grewal and I recently observed in anarticle published by The Recorder, the intelligent sampling of ESI under Federal Rule of Civil Procedure 34 may be the most strategic, economical discovery device for obtaining relevant materials."

Preserving Electronically Stored Information When Employees Depart (Mayer Brown)

"Courts and regulators require that companies make good faith, reasonable efforts to preserve ESI of departing employees that is subject to a legal hold.  Therefore, it is important for a company to implement procedures aimed at preserving and collecting, if necessary, ESI associated with its departing and transitioning employees."

An International Standard On E-Discovery Is Becoming A Reality (Kelly Friedman, Davis LLP)

"Early in 2013, the international community voted to begin a new project – the development of an international standard for electronic discovery. The proposal for the international standard, referred to as “ISO/IEC 27050 - Information technology – Security techniques – Electronic discovery” (“ISO/IEC 27050”), was put forward by an American delegation to an international subcommittee of information technology and standards experts in Annapolis, France. Six months later, I participated on behalf of Canada in a boardroom in Incheon, South Korea as ISO/IEC 27050 was discussed by members of the international standards community. We decided to create a four-part 27050 standard:

1 - Overview and Concepts;

2 - Guidance for governance and management of electronic discovery;

3 - Code of Practice for electronic discovery; and

4 - ICT readiness for electronic discovery."

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."