E-discovery Update Newsletters

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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

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

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

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

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

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

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

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

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

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

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