Electronically Stored Information

News & Analysis as of

Handy-Dandy Checklist for Admissibility of Electronic Evidence

For years we’ve advocated about ediscovery for defendants – consisting mostly of material gathered from a plaintiff’s social media postings. OK, so let’s assume some degree of success. Defense-side ediscovery has generated...more

Managed Services: eDiscovery That Tastes Great and Is Less Filling

In the 1970s, one brewer introduced its brand of light beer, and a classic debate: “tastes great” vs. “less filling.” The idea behind the campaign was that the beverage was “everything you always wanted in a beer. And...more

Discovery - Oppenheimer’s Half Life Has Long Been Exceeded

As we’ve discussed previously, and as the legal profession is by now well aware, the discovery provisions of the Federal Rules of Civil Procedure were significantly amended effective December 1, 2015. One of the foundational...more

Court Approves Use Of Predictive Coding In Large Disclosure Exercise

In Pyrrho Investments Ltd & ors v MWB Property Ltd & ors [2016] EWHC 256 (Ch) a Chancery Master has approved the use of “predictive coding” in a large disclosure process involving millions of electronically stored documents....more

Are Changes in Store for the Stored Communications Act?

Last week saw action on two fronts regarding the Stored Communications Act (SCA) – the US federal statute regulating government searches of online accounts in criminal investigations. In Congress, a proposal to reform the SCA...more

Everything but the Kitchen Sink: New Data Types and E-Discovery

Almost any activity we take part in creates data; it no longer resides just on email servers or your laptop or mobile phones. Data resides in the cloud, in apps, on social media, in your watch or fitness tracker. For...more

Data security is top driver for information governance

A recent Advice from Counsel study sponsored by FTI Technology, entitled “The State of Information Governance in Corporations” found data security to be the top driver for information governance initiatives. The purpose of...more

Failure to Stop Automatic Deletion of Text Messages Does Not Merit Sanctions (Florida)

Living Color Enters., Inc. v. New Era Aquaculture, Ltd., 2016 WL 1105297 (S.D. Fla. Mar. 22, 2016) - In this case, the plaintiff motioned for sanctions against the defendant for the deletion of text messages. The...more

Court Denies Plaintiffs’ Motion to Compel the Production of Documents from Defendant’s Overseas Manufacturer (Connecticut)

Grayson v. Gen. Elec. Co., 2016 WL 1275027 (D. Conn. Apr. 1, 2016) - In this putative class action, the plaintiffs sought to compel the defendant to produce certain discovery from its overseas manufacturer and the...more

Can Amended Federal Rule of Civil Procedure 37(E) Rewrite Plaintiffs' Spoliation Playbook?

The application of Rule 37(e) may limit spoliation litigation to issues relevant to underlying claims and defenses. A key component in plaintiffs’ playbook when facing a corporate defendant is to attempt to try cases...more

Administrative Determinations by the Supreme Court on the Report and Recommendations of the Working Group on Ethical Issues...

Last week, the New Jersey Supreme Court accepted the recommendation of a task force it established to study whether New Jersey’s civil discovery and ethics rules should take account of “metadata” in electronically-transmitted...more

Case and Sanctions Dismissed in Light of New Evidence (New York)

CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (S.D.N.Y. Apr. 4, 2016) - In this trademark infringement case, the parties stipulated to dismissal, with prejudice, of all remaining claims in the case. Previously, the...more

Claims of Lightning Strike and Power Surge Fail to Protect Against Sanctions (California)

InternMatch v. Nxtbigthing, 2016 WL 491483 (N.D. Cal. Feb. 8, 2016) - In this trademark infringement case, the plaintiff brought terminating sanctions against the defendants, accusing the defendants of intentionally...more

Friday Funnies: Exterro's E-Discovery and IG Comics and Memes Page

We here at Exterro love E-Discovery! But it helps to have a sense of humor. That's why we created our E-Discovery and Information Governance Memes and Cartoons Series. And now you can go back and relive the magic...more

It’s Not Just the Internet of Things Anymore

Last year, there were an estimated 16 billion devices connected to the Internet, and predictions say that the number will rise as high as 30 billion devices by 2020. The Internet of Things (IoT) has gained publicity (or...more

Disclosure in a digital age – How reforms and technology can reduce the costs of disclosure in arbitration and court

Managing the cost of litigation to business remains one of the toughest issues confronting any lawyer today. As the challenge of keeping costs proportionate seemingly gets more difficult by the day, we consider the impact of...more

Preservation of ESI Under Rule 37(e)

In the short amount of time since the amendment to Rule 37(e) of the Federal Rules of Civil Procedure, courts have confronted the task of applying the parameters of this newly revised Rule. Importantly, in contrast to the...more

Everything Old is New Again: New Sources for Spoliation Sanctions

A recent case in the Middle District of Tennessee highlights the scope and limits of spoliation sanctions under amended Rule 37(e). In Benefield v. MStreet Entertainment, LLC, 2016 WL 374568 (M.D. Tenn., Feb. 1, 2016), the...more

Will Texas Stay Moderate When it Comes to e-Discovery?

With the onslaught of nonstop news concerning the forthcoming presidential election, and the extreme positions the various camps frequently take, moderation and reasonableness, especially in Texas, seems to be on the wane....more

Court Denies Motion for a Negative Inference Based upon Plaintiff’s Alleged Deletion of Emails

In one of the first cases applying the 2016 amendments to the federal discovery rules, on March 11, 2016, Judge Pratter of the United States District Court for the Eastern District of Pennsylvania issued a Memorandum Opinion...more

UK High Court Approves the Use of Predictive Coding in Litigation

Legal technology providers in the UK have a lot to celebrate as the English High Court recently approved the use of predictive coding for disclosure in litigation. The judgment, handed down by Master Matthews in Pyrrho...more

All about the Benjamin: Leveraging Technology for E-Discovery Process Optimization

Benjamin Franklin was an early adopter when it comes to process optimization. In his autobiography, he says of Order: “Let all your things have their places; let each part of your business have its time." He then goes on to...more

What’s Trending in eDiscovery

The first quarter of 2016 has been a busy one for courts adjudicating matters relating to eDiscovery. Across the pond, the English High Court approved the use of technology-assisted review, while U.S. courts have been busy...more

The Scheindlin eDiscovery Legacy

At the end of April, the matriarch of eDiscovery, U.S. District Judge Shira A. Scheindlin, will step down from the bench. Since her appointment in 1994, Judge Scheindlin has presided over numerous high-profile trials,...more

“We Give Up!”: Supreme Court Strikes Down All E-Discovery Amendments

In a shocking turn of events early this morning, April 1, 2016, the SCOTUS reset the clock to the days before electronic information was made discoverable in courts by striking down all so-called “E-Discovery Amendments” in...more

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