Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: discovery that is not authorized by law cannot be “untaken”. order that compels discovery beyond that allowed by law is abuse of discretion
Nature of Case: personal injury, property liability
Electronic Data Involved: WTG net worth documentation
Keywords: net worth discovery, abuse of discretion, motion to compel
Key Insight: dispute over search terms meant to identify documents
Nature of Case: environmental litigation
Electronic Data Involved: all discovery, search term protocol
Keywords: search term protocol, predictive coding, technology assisted review,
Key Insight: Although TAR is widely recognized as “cheaper, more efficient, and superior to keyword searching,” the responding party may decide for themselves the best method for producing their ESI. The court will not compel the utilization of TAR but may revisit the issue if Plaintiff contends the actual production is deficient.
Nature of Case: Environmental, Class Action
Electronic Data Involved: Electronic Documents Generally
Key Insight: if a motion to deny a class certification can be granted before discovery
Nature of Case: telemarketing, telephone consumer protection act
Electronic Data Involved: discovery showing common questions for a class certification
Keywords: class certification, rule 23
Key Insight: This dispute was over which party was obligated to translate (or pay for the cost of translating) documents that were produced by Defendants (in response to document requests) into English. Plaintiffs filed a Motion to Compel Defendants to translate the documents and/or pay for the cost of translation, The Court denied it, finding that Defendants were neither obligated to translate the documents nor responsible for the cost(s) of translation. However, the court noted in a footnote that a party that produces documents in response to an interrogatory may be required to provide translations.
Nature of Case: Unfair Competition, Defamation
Electronic Data Involved: Documents
Key Insight: whether a request for a specific format is an undue burden
Nature of Case:
Electronic Data Involved: documents produced in TIFF format versus native format
Keywords: undue burden, TIFF, native, cybersecurity
Identified State Rule(s): 214(b)
Key Insight: who bears the burden of paying for translation of foreign language documents
Nature of Case: unfair competition, false advertising, defamation, false light, trade libel, and tortious interference
Electronic Data Involved: foreign language documents
Keywords: foreign language, translation, machine translation, burden to pay
Key Insight: withholding discovery on the basis that forensic imaging isn’t under the scope
Nature of Case: trade secrets, unfair trade practices, unfair competition
Electronic Data Involved: Defendant’s laptop and associated harddrives
Keywords: scrubbed metadata, forensic imaging, hard drives, scope of discovery, bad faith litigation
Key Insight: Privileged docs based on only state law must be produced in a case with both federal and state claims
Nature of Case: Medical malpractice
Electronic Data Involved: Responsive documents
Keywords: Privilege, state law
Identified State Rule(s): K.S.A. section 65-4925(a)
Identified Federal Rule(s): FRCP 26(b)
Key Insight: defendants perpetrated fraud and acted in bad faith when not disclosing test results of defective product
Nature of Case: product liability
Electronic Data Involved: product test results that were not disclosed
Keywords: fraud, bad faith, disclosure, confidentiality
Identified Local Court Rule(s): Maricopa county local practice rule 2.19, 5.4
Identified State Rule(s): 26(c)(1), 26(c)(1)(G), 26(c)(4)(A)
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