Electronic Discovery Civil Procedure

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A Framework for Discovery Automation: eDiscovery Trends

Automation has been a recurring theme this year on this blog. At the beginning of the year, I declared that the age of eDiscovery automation is upon us. I’ve also spoken about discovery automation on numerous occasions,...more

The SEC Has Data Fever, and the Only Prescription Is More Data (Analytics)

Companies are increasingly investing in enterprise governance, risk, and compliance (eGRC), largely in response to an uptick in regulatory action and enforcement. Between the enactment of laws such as the Dodd-Frank Wall...more

Before Asking for Sanctions, Check the Recycle Bin

Erhart v. BofI Holding, Inc., No. 15-cv-02287-BAS (NLS), 2016 WL 5110453 (S.D. Cal. Sept. 21, 2016). The court denied sanctions against a party where the huge majority of the files he deleted were not actually destroyed,...more

Court Clarifies that Data Must be Permanently Deleted for Sanctions (California)

Erhart v. BofI Holding, Inc., 2016 U.S. Dist. LEXIS 129906 (S.D. Cal. Sept. 21, 2016) - In this whistleblower retaliation case, the defendant moved the court to impose sanctions on the plaintiff for deleting thousands of...more

Slip and Fall Case Leads to Sanctions Faceplant

Atiles v. Golub Corp., No. 521828 (N.Y. App. July 28, 2016). The appellate court affirmed the lower court’s denial of an adverse inference instruction where the plaintiff did not establish that the additional video...more

Court Issues a Cornucopia of Sanctions for Discovery Violations (New York)

Arrowhead Capital Fin., Ltd. v. Seven Arts Entm’t, Inc., 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016) - In this case, the plaintiff motioned the court to grant sanctions for the defendants’ discovery...more

How to Find a Quantum of Solace With Multi-Language eDiscovery

“Where there’s smoke, there’s fire.” These words, spoken by James Bond in From Russia With Love, encapsulate the fears many have in the wake of the UK’s historic vote to Brexit the EU. Amid continued warnings about markets...more

“Can I Throw Out Those Dust Covered Files?” Defensibility, Efficiency, and the Comprehensive Guide to E-Discovery Preservation

When I was in high school, I worked for a family-owned office supply store, one of the last of the local businesses left on main street in the small Midwestern town where I lived. It was a frustrating job most of the time...more

How to Avoid Getting "Burned" by Redactions: eDiscovery Best Practices

Having addressed this issue with a client recently, it seems appropriate to revisit this topic… On the surface, it may seem easy enough to redact a document during eDiscovery review to obscure confidential or...more

Court Compels Party to Identify Knowledgeable IT Personnel (South Dakota)

Collins v. St. Paul Fire & Marine Ins. Co., 2016 U.S. Dist. LEXIS 135615 (D. S.D. Sept. 30, 2016) - In this bad faith diversity action, the plaintiff filed a motion to compel discovery. One of the issues was that the...more

"The E-Discovery Digest - October 2016"

The fifth edition of The E-Discovery Digest focuses on recent decisions addressing the scope and application of the attorney client privilege and work-product doctrine, spoliation, and discovery responses. Please see...more

Court Orders Party to Attempt On-Site Data Collection (New York)

Sky Med. Supply Inc. v. SCS Support Claim Servs., 2016 U.S. Dist. LEXIS 121215 (E.D.N.Y. Sept. 7, 2016) - In this RICO case, the defendants filed a motion to compel, arguing that the plaintiff responded to an ESI request...more

Dropped Cell Phone Does Not Lead to Spoliation Sanctions Under Amended Rule 37(e): eDiscovery Case Law

In Shaffer v. Gaither, No. 14-00106 (W.D. N.C., Sept. 1, 2016), North Carolina District Judge Max O. Cogburn, Jr. ruled that the sanction of dismissal requested by the defendant for the plaintiff’s lost text messages was...more

Court Discusses What Constitutes Reasonable Steps for Preserving Text Messages (North Carolina)

Shaffer v. Gaither, 2016 U.S. Dist. LEXIS 118225 (W.D.N.C. Sept. 1, 2016) In this employment law case, the defendant moved the court to dismiss the case for evidence destruction. The plaintiff accidentally destroyed her...more

[Webinar] Cloud Computing Series – eDiscovery - October 26th, 12:00p.m. CT

As cloud providers grow and more information is being stored in “the cloud,” it is important to consider the risks and benefits when confronted with litigation. This webinar presentation will examine litigation and...more

[Webinar] Cost-Effective Ediscovery: How to Manage Expense and Reduce Waste - October 26th, 12:00p.m. CT

Discovery is often the most expensive part of litigation, with document retrieval, review and production costs easily reaching thousands, if not millions of dollars. However, this does not need to be the case....more

A Self-Inflicted High Discovery Cost Does Not Render Information “Inaccessible”

Wagoner v. Lewis Gale Med. Ctr., LLC, No. 7:15cv570 (W.D. Va. July 13, 2016). In Wagoner v. Lewis Gale Med. Ctr., LLC, court held that the plaintiff’s “limited request” for discovery, “restricted by custodian, search...more

Court Denies Defendant’s Motion for Production of Documents for In Camera Review: eDiscovery Case Law

In Portland Pipe Line Corp. et. al. v. City of South Portland et. al., No. 15-00054 (D. Maine, Sept. 8, 2016), Maine Magistrate Judge John H. Rich, III denied the defendants’ motion to compel the production of documents...more

Court Will Not Force Responding Party to Use TAR; Judge Peck Authors another Key Predictive Coding Opinion (New York)

Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016) - In this employment discrimination case, the plaintiff moved to compel the defendants to utilize Technology Assisted Review (TAR) when...more

Appeals Court Upholds Default Judgment for Discovery Violations, Including Wiping Files from Laptop: eDiscovery Case Law

In Trude et. al. v. Glenwood State Bank, et. al., Nos. A15-0378, A15-1863, A15-1864 (Minn. App., Aug. 15, 2016), a Minnesota Appeals Court affirmed the trial court’s entry of default judgment for repeated discovery...more

Proportionality Factors Persuade Court to Grant Motion to Compel (Pennsylvania)

First Niagara Risk Mgmt. v. Folino, 2016 U.S. Dist. LEXIS 106094 (E.D. Pa. Aug. 11, 2016) - In this dispute over the violation of a non-compete agreement, the plaintiff moved the court to compel a discovery request....more

“Rather Broad” Discovery Request Is Nonetheless Proportional to Case

First Niagara Risk Mgmt., Inc. v. Folino, No. 16-1779 (E.D. Pa. Aug. 11, 2016). The court concluded that the plaintiff’s requested scope of discovery from the defendant’s electronic devices, while “rather broad,” was...more

Court Limits Request for Social Media to Certain Relevant Information (Louisiana)

Baxter v. Anderson, 2016 U.S. Dist. LEXIS 110687 (M.D. La. Aug. 18, 2016) - In this personal injury case, the defendant moved the court to compel a wide range of discovery related to the plaintiff’s social media...more

Court Refuses to Compel Disclosure of Archived E-Mails Due to “Undue Burden and Cost”

Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB (W.D. Wash. July 29, 2016). After a previous order granting the plaintiff’s motion to compel discovery of “live” e-mails, the court denied the plaintiff’s...more

Court Holds that Predictive Coding Does Not Change Discovery Standard (Federal Circuit)

Dynamo Holdings Ltd. P’ship v. Comm’r of Internal Revenue, No. 2685-11, 8393-12, 2016 WL 4204067 (T.C. July 13, 2016) - In this tax case, the respondent sought a motion to compel the petitioners to provide documents...more

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