Caselaw

Dodging Deserved Spoliation Sanctions

Although it appears that the jury will hear about the defendants bad acts, I am disappointed that the court declined the harsher subsection (e)(2) because the plaintiffs did not have evidence of intent. This ruling could temp corporations to ‘lose’ encryption keys rather than deal with evidence. I bet that if you had all the various communications between the key players you would find [...]

By |2021-06-03T14:43:36-05:00June 3rd, 2021|Caselaw, Federal, News, Collection|0 Comments

Sanctions for eDiscovery Incompetence – Finally

Disdain and frustration fills the 256 page opinion from US District Judge Iain D. Johnston sanctioning defense counsel and defendant. The Gibbons Law Alert summary manages to convey some of this, rightfully calling it “a veritable Keystone Kops series of discovery errors and misrepresentations spanning several years.” Judge Johnston’s righteous ire over counsel’s ‘indifference’ and ‘incompetence’ regarding the defendant’s behavior that resulted in incomplete [...]

By |2021-03-30T10:55:40-05:00March 30th, 2021|Caselaw, Essay, Compliance, Preservation, Collection|2 Comments

Discovery Starts with Investigations

The focus of the Ms. Grierson’s law alert is how and why the defendant was forced to produce their legal hold notice communications as part of the spoliation determination. What I found more interesting in the source Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem’l Hosp., Inc. decision is how the ‘Chair of the Investigative Committee’ conducted his investigation [...]

By |2021-02-09T15:55:57-06:00February 9th, 2021|Caselaw, Investigation, News, Legal Holds|0 Comments

Early Meet & Confer for 30(b)(6) Witness Scope

The FRCP amendments have consistently pushed litigants to meet and confer earlier in the discovery process. This amendment focuses on defining the agreed deposition topics before or immediately following notices of deposition. That would certainly prevent some of the long and boring series of depo questions I have endured that were outside of my designated scope for a client. I am hoping that this [...]

By |2020-12-11T14:22:23-06:00December 11th, 2020|Caselaw, Federal, Regulations, News|0 Comments

Nuggets of Gold from a TAR Fight – Pt 2

I wanted to take advantage of Rob Robinson’s timely release of his Winter 2021 eDiscovery Pricing Survey Results and compare a few key prices with those I calculated in my blog analysis of the TAR fight order in Lawson v. Spirit Aerosystems. I appreciate and encourage Rob to keep running his surveys. Seventy nine respondents (n=79) is quite respectable given the recent proliferation of [...]

By |2020-12-08T11:27:58-06:00December 8th, 2020|Federal, Provider, Caselaw, Essay, Firm, Processing, Analysis, Review, Purchase|1 Comment

eDiscovery Over the Pond = eDisclosure

Another good find and commentary by Doug Austin, A Time of Discovery – A History of Electronic Disclosure (Part One). I like how he pointed out how the UK’s disclosure rules were updated in the same time frame as our FRCP amendments. Civil litigation and arbitration rules vary wildly by international venue. That was a big shock to me as a young product manager [...]

By |2020-12-08T10:33:02-06:00December 8th, 2020|Caselaw, Europe, Regulations, News|0 Comments

Nuggets of Gold from a TAR Fight

Provider pricing and custodial metrics are often impossible to find because so much of the eDiscovery market insists on wrapping sales in NDAs.  That can be frustrating to a consultant who specializes in solution proposals, ROI analysis and RFP engagements. So you can imagine how happy I am to share the public details gleaned from digging through the actual order and Casetext’s fabulous synopsis. [...]

By |2020-12-02T16:00:45-06:00December 2nd, 2020|Caselaw, Essay, Processing, Analysis, Review|3 Comments

eDiscovery Sanctions Go All the Way to the Top

As a 30(b)(6) witness for some of my clients, I follow eDiscovery spoliation cases closely. Most of them have little or no ‘teeth’ when a party has even attempted to meet their obligations. It is nice to see a magistrate drop the hammer on a party who appears to have consistently and deliberately tried to hide relevant ESI. The cited order is worth a [...]

By |2020-10-29T14:06:36-05:00October 29th, 2020|Caselaw, News, Compliance|0 Comments

Responding Party Controls TAR Strategy

Normally I dig through the actual ruling language for new eDiscovery caselaw. In this case my former Symantec alumni has written a great summary of the contested discovery protocols. I refrained from quoting his closing four take-aways, but they are worth a read. What caught my interest here was the defendant’s original strategy to use its “Microsoft Tool” (I bet O365 Advanced eDiscovery) to [...]

By |2020-09-16T10:38:26-05:00September 16th, 2020|Caselaw, Analytics, News, Collection, Processing, Analysis, Review|0 Comments

Preserving the Context of Privileged Communications

The article is a long and rather scholarly coverage of the evolution of the communication privilege. It brings up a couple interesting issues for retention policies and classification systems. First is the need to retain the actual communication wrapper for legal work product to preserve privilege. The proliferation of online meetings, chat and collaboration channels are generally considered informal communications and not addressed by [...]

By |2020-09-14T12:41:08-05:00September 14th, 2020|Caselaw, Analytics, News, Privacy, Content Management, Review|0 Comments
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