Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: Defendant incurred costs that were “reasonable and necessary to the litigation” via a “time consuming process”, and thus were awarded the costs from the opposing party.
Nature of Case: Violation of the Credit Card Act, class action
Electronic Data Involved: Wide range of documents
Keywords: Predictive coding, seed set, “reasonable and necessary”, Predictive coding cost
Key Insight: sanctions for incorrect data
Nature of Case: patent infringement
Electronic Data Involved: testing data
Keywords: monetary sanctions, attorneys’ fees, prompt disclosure, inaccurate data
Key Insight: Inconvenient is not unreasonable or burdensome wrt e-discovery
Nature of Case: Employment discrimination
Electronic Data Involved: Emails
Keywords: smoking gun,
Key Insight: Defendant claimed reviewing 363,000 emails would be unduly burdensome. Court rules that even the expected responsiveness rate of between 8.3% and 15% meant it would be valuable. Court required defendant to review the emails and denied cost shifting requested by defendant.
Nature of Case: Employment Discrimination
Electronic Data Involved: Email
Keywords: burdensome, responsiveness, proportionality
Key Insight: spoliation sanctions
Nature of Case: general/professional liability
Electronic Data Involved: handwritten notes
Keywords: spoliation, two-factor test, institutional notice, relevance, adverse inference
Key Insight: Sanctions because party violated court order to produce expert witness for deposition and didn’t notice until afterwards
Nature of Case: employee class action
Electronic Data Involved: expert witness deposition
Keywords: expert deposition, timing, subpoena , sanctions, expert witness, expert fees, court order violation
Key Insight: Forensic examination must be proportional to the information it can exclusively gain, including privacy concerns
Nature of Case: Telephone Consumer Protection Act (Class Action)
Electronic Data Involved: Text messages
Keywords: Text messages, imaging, forensic, proportionality
Key Insight: Filings for spoliation sanctions should be timely, years after alleged destruction suggests untimely
Nature of Case: Insurance subrogation
Electronic Data Involved: Testing data from safety devices
Keywords: Spoliation, sanctions, boiler
Key Insight: Whether evidence on which the ruling is based can be redacted and kept from the public
Nature of Case: Multi-district product liability
Electronic Data Involved: evidence placed under seal
Keywords: under seal, redaction
Key Insight: what duty plaintiff has to preserve relevant evidence in anticipation of litigation
Nature of Case: product liability claim
Electronic Data Involved: No ESI, issue around Ford Explorer tire tread.
Keywords: plaintiff duty to preserve evidence
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