Our Insights on eDiscovery

Read on to learn more about the latest trends and insights in the world of digital discovery.
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eDiscovery Case Law: Judge Peck Responds to Plaintiff’s Request for Recusal
 eDiscovery Case Law: Judge Peck Responds to Plaintiff’s Request for Recusal 150 150 CloudNine

On Monday, Magistrate Judge Andrew J. Peck issued an order (in the case Da Silva Moore v. Publicis Groupe & MSL Group) in response to Plaintiffs’ request for his recusal, which, according to Judge Peck, was contained in a letter dated March 28, 2012 (not currently publicly available). Here is what the Order said.

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eDiscovery Best Practices: Tips for Saving Money in Litigation
 eDiscovery Best Practices: Tips for Saving Money in Litigation 150 150 CloudNine

A recent article on The National Law Journal (entitled Top 12 tips for saving money in litigation, authored by Damon W.D. Wright) had some good tips for – you guessed it – saving money during litigation. I thought it would be worth discussing some of these, especially those that relate to eDiscovery cost savings practices.

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eDiscovery Case Law: Tennessee Court Orders Split eDiscovery Costs, Plaintiff Bond for Additional Discovery
 eDiscovery Case Law: Tennessee Court Orders Split eDiscovery Costs, Plaintiff Bond for Additional Discovery 150 150 CloudNine

In considering the allocation of costs in this contentious business dispute, Tennessee Magistrate Judge Joe B. Brown (not to be confused with TV’s Judge Joe Brown) ordered the parties to split the expenses related to material they had not already produced in Lubber Inc. v. Optari, LLC.

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eDiscovery Case Law: Two Pages Inadvertently Disclosed Out of Two Million May Still Waive Privilege
 eDiscovery Case Law: Two Pages Inadvertently Disclosed Out of Two Million May Still Waive Privilege 150 150 CloudNine

In Jacob v. Duane Reade, Inc., Magistrate Judge Theodore Katz of the US District Court for the Southern District of New York found that a privileged, two-page email that was inadvertently produced did not have to be returned and that the privilege had been waived because the producing party, Duane Reade, had failed to request its return in a timely manner. According to Defendants’ counsel, the ESI production involved the review of over two million documents in less than a month; that review was accomplished with the assistance of an outside vendor and document review team.

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eDiscovery Trends: What Do Investment Bankers Think About the eDiscovery Industry?
 eDiscovery Trends: What Do Investment Bankers Think About the eDiscovery Industry? 150 150 CloudNine

We’ve published a few studies and surveys regarding the state of the eDiscovery industry, including this one from last week and this one from last fall. Another industry review was published just last month by VRA Partners, an investment banking firm based in Atlanta, GA.

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eDiscovery Trends: Delaware Has a New Standard for eDiscovery
 eDiscovery Trends: Delaware Has a New Standard for eDiscovery 150 150 CloudNine

On Dec. 8 of last year, the U.S. District Court for the District of Delaware revised the “Default Standard for Discovery, Including Discovery of Electronically Stored Information (ESI)” for the third time to reflect recent changes in technology and to address concerns of attorneys regarding the discovery of ESI. The new Default Standard expects the parties to reach agreements cooperatively on how to conduct discovery under Fed. R. Civ. P. 26-36. If the parties are unable to agree on the parameters and/or timing of discovery, the default standards will apply until further order of the Court or the parties reach agreement (which is why it’s a default standard).

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eDiscovery Trends: Google “Vaults” Into eDiscovery Preservation
 eDiscovery Trends: Google “Vaults” Into eDiscovery Preservation 150 150 CloudNine

Yesterday, Google announced the launch of an eDiscovery tool named Vault for its Google Apps business customers. Google Apps Vault is an add-on which preserves electronically stored information (ESI), including Gmail, chats and other correspondence to help users meet preservation obligations for litigation, regulation and compliance laws.

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eDiscovery Trends: Three Years Later, “Deleted” Facebook Photos Still Online
 eDiscovery Trends: Three Years Later, “Deleted” Facebook Photos Still Online 150 150 CloudNine

So, that’s why they call it “Facebook”. Because the “faces” never leave! Ba-dum-bah! Hey, I’m in town all week! Thanks to the Technologist for this article, by way of Ars Technica. If you have deleted any of your photos from Facebook in the past three years, you may be surprised to find that they are probably still on the company’s servers.

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eDiscovery Trends: One Third of Surveyed Attorneys Plans to Increase eDiscovery Spending
 eDiscovery Trends: One Third of Surveyed Attorneys Plans to Increase eDiscovery Spending 150 150 CloudNine

A new survey from Robert Half Legal eDiscovery Services finds that spending by organizations on electronic discovery-related services grew in 2011 and should continue to increase through 2013. According to the survey of 350 attorneys in large law firms and corporations in the US and Canada, 23 percent of attorneys surveyed said their law firms and corporate legal departments increased eDiscovery expenditures in the last year, with 71 percent indicating that spending remained the same and just 2 percent indicating that they reduced spending. For 2012 and 2013, nearly one-third (33 percent) of attorneys expected to increase spending on eDiscovery, while 56 percent expect no change in spending and 4 percent expect to decrease eDiscovery spending.

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eDiscovery Case Law: Da Silva Moore Plaintiffs Question Predictive Coding Proposal, Judge Peck’s Activities
 eDiscovery Case Law: Da Silva Moore Plaintiffs Question Predictive Coding Proposal, Judge Peck’s Activities 150 150 CloudNine

A few weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion making it likely the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case. However, on March 13, District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional briefing on their February 22 objections to the ruling. In that briefing (filed last Monday, March 26), the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents in this case” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind.

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