February 2012 – Electronic Discovery Law

Magistrate Judge Peck Issues Written Opinion Addressing Computer-Assisted Review

Feb 27 2012

Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012)

Magistrate Judge Andrew Peck issued an opinion on Friday, February 24, 2012, approving of the use of computer-assisted review of electronically stored information (“ESI”) by the parties in this case. The opinion, which discusses both the details of the underlying case and the topic of computer-assisted review more generally, addresses a myriad of issues including how computer-assisted review works (generally) and what benefits it may provide. The court appears to be the first to recognize that “computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.”

Government’s “Recommendations for ESI Discovery in Federal Criminal Cases” Revealed

Feb 22 2012

This month, the Joint Electronic Technology Working Group (JETWG) revealed its “Recommendations for ESI Discovery in Federal Criminal Cases,” which are intended “to promote the efficient and cost-effective post-indictment production of electronically stored information (ESI) in discovery between the Government and defendants charged in federal criminal cases, and to reduce unnecessary conflict and litigation over ESI discovery by encouraging the parties to communicate about ESI discovery issues, by creating a predictable framework for ESI discovery, and by establishing methods for resolving ESI discovery disputes without the need for court intervention.”

“If you’re gonna just read one blog . . . it should probably be the Electronic Discovery Law blog . . . .”

Feb 20 2012

It was great to hear the Electronic Discovery Law blog receiving high praise in the most recent Digital Detectives podcast! In particular, our thanks go out to Neil Squillante, publisher of LitigationWorld, who was the guest of Sharon D. Nelson and John W. Simek this month . The podcast was called “The Best Resources for Staying Current in E-Discovery” and when the topic turned to blogs, Mr. Squillante had this to say:

If you’re gonna just read one blog because you don’t have time, it should probably be the Electronic Discovery Law blog published by K&L Gates, a law firm. They cover the most important appellate opinions in the ediscovery space so it’s a good way to keep up with what’s going on, especially issues that scare lawyers like spoliation, sanctions, and so forth.

To listen to the podcast, click here.

Predictive Coding Addressed in Detail at Hearing, Parties Ordered to Submit Draft Protocol

Feb 15 2012

Da Silva Moore v. Publicis Groupe, No. 11 Civ. 1279 (ALC) (S.D.N.Y. Feb. 8, 2012)

On February 8, 2012, Magistrate Judge Andrew Peck conducted a hearing addressing several discovery issues which included a lengthy discussion of an appropriate protocol for predictive coding and resulted in an order for the parties to submit their draft protocols by February 16th. The hearing was attended by counsel and their respective ESI experts. A written opinion is expected which may distill some of the more technical aspects of the discussion. Nonetheless, for those with the time, the (rather lengthy) transcript of the hearing is fascinating, and certainly worth a read.

A copy of the transcript is available here.

If and when an opinion is issued in this matter, it will be available here as well.

NY State Court adopts Zubulake Standard: Reasonable Anticipation of Litigation Triggers Duty to Preserve

Feb 14 2012

Voom Holdings LLC v. EchoStar Satellite LLC, —N.Y.S.2d—, 2012 WL 265833 (N.Y. App. Div. Jan. 31, 2012)

In this case, the appellate court held that the lower court “properly invoked the standard for preservation set forth in Zubulake v. UBS Warburg LLC”, which requires that a party place a litigation hold once it “reasonably anticipates litigation” and affirmed the lower court’s order imposing an adverse inference for defendant’s spoliation of ESI.

Must Parent and Attachment Files Be Kept Together?

Feb 09 2012

Thomas J. Smith and Matthew S. Collins, K&L Gates
The Legal Intelligencer, February 9, 2012

The extraordinary cost of e-discovery is well documented. The amount of ESI that we generate is exploding and the use and prevalence of technology, its ease of access, and the relatively low cost mean that trend will continue. Clients are becoming increasingly sensitive to and concerned about these increasing costs, and the ongoing economic malaise has only exacerbated the problem and hastened clients’ efforts to control such costs. In doing so, parties are looking beyond macro controls such as the number of custodians, the nature of collections (full v. targeted), and filtering techniques (date limitations, keyword terms), and now look at micro controls, including the parsing of document families at a component level. A key question, therefore, becomes: If one part of a multi-component document is relevant, should all nonprivileged parts of that document also be produced?

To read the entire article, click here.

On Appeal, KPMG Ordered to Continue Preservation of more than 2500 Hard Drives

Feb 09 2012

Pippins v. KPMG LLP, —F.R.D.—, 2012 WL 370321 (S.D.N.Y. Feb. 3, 2012)

In this opinion, the District Court found the Magistrate Judge’s order requiring defendant’s preservation of more than 2500 hard drives was not clearly erroneous or contrary to law. Finding objections to the order moot, however, because plaintiffs’ motion for conditional certification of a nationwide class was granted, the court denied defendant’s motion for a protective order and ordered preservation of the hard drives until the parties could agree on a sampling methodology, until defendant abandoned a particular litigation position, or until members of each relevant class were established.

Archive - February 2012