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E-discovery Update Newsletters

Current Issue

April 2019

Featured in this issue

  • Court denies sanctions request because defendant did not show the requested ESI was lost
  • Court sanctions Prince bootleggers for intentionally deleting text messages
  • Defendant attempts to voluntarily dismiss counterclaim to avoid “ESI maelstrom”
  • The Sedona Conference publishes primer on social media
  • Court orders discovery of “tagged” photos not posted directly by plaintiff
  • TAR Guidelines published by EDRM

Previous Issues

December 2018

  • Court issues order compelling targeted production of legacy platform ESI
  • Jimi Hendrix can set his guitar on fire, but court says his trademark infringers cannot spoliate
  • Court orders defendants to review random sample of search term hits
  • Magistrate judge recommends sanctions for failure to institute effective document preservation hold
  • Court finds that failure to preserve surveillance video does not merit sanctions
  • Court orders party to execute releases for documents held by non-parties
  • Court sanctions law firms for discovery gamesmanship
  • Court grants adverse inference from defendant’s failure to preserve evidence

August 2018

  • Court declines to sanction overt spoliation when other evidence provides similar information
  • Court refuses to award 20 U.S.C. Section 1920 costs for use of a database because using the database is not “printing”
  • Court disagrees with “quick peek” caselaw, orders special master to review privilege designations
  • Court orders parties to meet and confer again, and to file a joint letter with result
  • Court rejects both parties’ search terms as over-inclusive and not proportional
  • Court grants motion for protective order from overly broad search terms request
  • Sedona Conference publishes July 2018 public comment version of Primer on Social Media, Second Edition
  • iPhone USB Restricted Mode poses new challenge for forensic tools and electronic collection
  • Second Circuit finds that attorney-client privilege and confidentiality order outweighs proportionality concerns in reversing order to subpoena documents for foreign proceeding

April 2018

  • In a malpractice suit brought by former client, court holds counsel negligent for failure to institute a legal hold and to monitor discovery compliance
  • Court denies motion to compel the identification of additional custodians and relevant documents in plaintiffs’ quest for perfect discovery
  • Court warns it may issue monetary sanctions if responding party continues to include boilerplate discovery objections
  • Judges’ survey explores key areas of improving e-discovery activities
  • New York Court of Appeals reverses Appellate Division’s heightened standard for production of non-public social media postings
  • Applying proportionality principle, court grants motion to compel production of information stored on backup tapes
  • Court compels party to review its documents for responsiveness before production; allows use of technology-assisted review

January 2018

  • Court applies proportionality factors both to compel production of documents and to deny request for cost-shifting
  • Court sanctions party for destruction of handwritten journal despite availability of partially scanned version
  • Court crafts its own ESI search strategies and orders defendant to employ them
  • Overburdened court refuses to conduct in-camera reviews, grants plaintiff’s motion to compel “quick peek”
  • Court rejects “unilaterally redacted” production, compels production of unredacted documents
  • Court rejects boilerplate objections in ordering production of documents
  • Court cites burden of probable “judicial intervention” under Rule 26(b) to affirm order denying motion to compel production

November 2017

  • Magistrate Judge Recommends Criminal Contempt for Late Disclosure of 2,500 Emails
  • Court Orders Production of Irrelevant Documents Under “Attorneys’ Eyes Only” Designation so Opposing Party Can Verify Relevance Determination
  • Court Says ESI Spoliation Without Prejudice is Like Basketball: “No Harm; No Foul”
  • Taylor Swift Motion for Adverse Inference Denied Because Plaintiff Claimed His Spilt Coffee Caused the Loss of Data
  • “Completely Reckless” Production Constituted Waiver of Privilege Under Deficient Clawback Agreement
  • Court Imposes Adverse Inference for Failure to Preserve Text Messages on a Non-Party’s Phone
  • Court Does Not Sanction Plaintiff Who Skipped “Pointless” Meet-And-Confer Because Defendant Did Not State with Particularity the Grounds for Seeking the Order to Compel
  • Sedona Conference Releases Third Edition of The Sedona Principles

June 2017

  • Court Imposes Sanctions for Falsifying Evidence Under the Revised Rule 37(e) but Declines to Grant Dismissal or an Adverse Inference
  • Court Orders Statistical Sampling in Lieu of a Burdensome Production
  • Department of Justice Issues Guidance Prohibiting Human Quality Control Review of Technology Assisted Review Results for Responsiveness
  • “Improper Boilerplate Objection With No Specifics” Results in Privilege Waiver
  • Court Imposes Adverse Inference for Destruction of Audio Recordings
  • Supreme Court Issues Guidance on a Federal Court’s Authority to Sanction Bad-Faith Litigation Conduct by Ordering the Payment of Opponent’s Legal Fees

March 2017

  • Federal Agency’s Review of Cell Phone Data Obtained from Local Police But Not Responsive to the Original Warrant Was an Illegal Search Under the Fourth Amendment
  • Pro Se Civil Plaintiff Denied Court-Appointed Expert Help with eDiscovery and Complicated Software Claims at the Core of His Case
  • SDNY Judge Rules Against Firm Claiming $362.50 Blended Rate for Temporary Associates Conducting Document Review
  • Litigant Sanctioned by Court for “Selective Preservation”
  • When Litigation is Reasonably Anticipated, Preserve Relevant Text Messages Quickly and Effectively
  • Defense Attorney Sanctioned for Citing Caselaw that Analyzed Superseded Version of FRCP 26(a)(1)
  • Watch for Emojis in Your Data Set
  • Survey of Federal Judges on eDiscovery Practices and Trends

September 2016

  • Requesting Party Cannot Force Responding Party to Use TAR
  • Responding Party Does Not Have to Supplement Document Production Generated by Collaborative Predictive Coding Process
  • “Ignorance” Regarding Which of Your Own Documents Might Be Responsive is Not a Legitimate Proportionality Argument
  • Court Denies Motion to Redo Document Production in Native Format
  • Scope of Discovery Does Not Extend to Unpled Claims or Defenses

October 2015

  • State Bar of California Discusses Electronic Discovery in Context of Ethical Duty of Competence
  • Court Orders Sanctions for Extensive Discovery Negligence
  • Court Determines “Marginal Relevance” Insufficient for Continued Discovery
  • Court Orders Cost Sharing for Conversion of ESI
  • Federal Trade Commission Updates Best Practices Guide for Merger Investigations
  • Annual Litigation Trends Survey Highlights eDiscovery Issues

June 2015

  • Supreme Court Approves Proposed Amendments to Rules 26 and 37
  • Judge Peck Revisits Technology Assisted Review
  • Court Holds Inadvertent Disclosure Not a Waiver Because of Reasonable Production Process
  • Court Orders Deposition of Court-Appointed Forensic Expert
  • Court Denies Motion to Compel Production of Plaintiff’s Flash Drive Containing Unauthorized Copies of Employer’s Personnel Records
  • Survey of Federal Judges on eDiscovery Practices and Trends