The National Attorneys General Training & Research Institute

The National Attorneys General Training & Research Institute The National Attorneys General Training & Research Institute

Electronic Discovery Bulletin August 2017

The following is a compendium of articles and case law that may be of interest to our AG offices that are dealing with electronic discovery issues. Neither the National Association of Attorneys General nor the National Attorneys General Training & Research Institute expresses a view neither as to the accuracy of the articles nor as to the position expounded by the authors of the hyperlinked articles.

  • In United States v. Nobles, the U.S. Supreme Court acknowledged that attorneys rely on investigators, consultants and other third parties in order to do their jobs, concluding that the attorney work product doctrine and attorney client privilege limits discovery from persons assisting attorneys. Thus, as eDiscovery provider Percipient points out, communications between attorneys and outside litigation consultants, such as eDiscovery vendors, and in-house litigation support are also largely protected. In a recent case, Broyles v. Convergent Outsourcing, Inc., the U.S. District Court for the Western District of Washington refused to allow the deposition of Convergent’s litigation support specialist.
  • The Association of Certified eDiscovery Specialists (ACEDS) is offering a free interactive Ask the Experts webinar on August 31, 2017 at 1 pm ET (12 noon CT, 11 am MT, 10 am PT). The panelists are Jared Conseglia, CEO of TRU Staffing Partners; Mary Mack, ACEDS Executive Director; and Kaylee Walstad, ACEDS Director of Strategic Partnerships. Registration is required.
  • An article in Law Technology Today by attorney Dave Ries discusses the ABA’s Formal Opinion 477 on Securing Communications of Protected Client Information and includes several state opinions on encryption as well as some suggestions for email service providers offering encryption.
  • This article by eDiscovery expert Craig Ball advocates for routine preservation of potentially relevant iPhone and iPad data by requiring custodians to back up their devices using iTunes and then compressing the backup for in situ preservation of collection.

-- Create a list of key employees who are most likely to have documents potentially relevant to the litigation;

-- Issue litigation hold notices to all parties who may have potentially responsive data;

-- Interview key employees to identify potential locations of responsive data in their possession;

-- Interview personnel of key departments, such as IT, Records and Human Resources about data specific to the case;

-- Identify all the sources and volumes of potentially relevant information, including shared servers, email servers, workstations and mobile devices; and

-- Plan your collection methodology, including whether you will use a litigation support vendor, whether the collection will be manual or automated and whether employees will self-collect their data. 

Recent Court Decisions

  • In Nachurs Alpine Solutions, Corp. v. Banks, the U.S. District Court for the Northern District of Iowa found it would be disproportional to require the defendants to go back through the documents to identify those that fall within the four categories the plaintiff believes are most likely to generate relevant documents.
  • In Ariel Investments, LLC v. Ariel Capital Advisors LLC, the U.S. District Court for the Northern District of Illinois awarded costs to the plaintiff under Rule 54(d) after finding it prevailed on all claims except one, or on a substantial part of the litigation as required by the Rule.
  • In Snider v. Danfoss, LLC, the U.S. District Court for the Northern District of Illinois denied the plaintiff’s request for spoliation sanctions for the defendant’s failure to preserve emails, concluding the information did not appear to be relevant and the plaintiff was not prejudiced.
  • In Mirmina v. Genpact LLC, the U.S. District Court for the District of Connecticut denied the plaintiff’s motion to compel the defendant to conduct an additional search, finding the plaintiff’s affidavit as to steps taken satisfied the court that a comprehensive search was conducted.
  • In Mueller v. Swift, the U.S. District Court for the District of Colorado ruled that the plaintiff’s loss or destruction of the complete recording of a conversation between plaintiff and his supervisors constitutes sanctionable spoliation of evidence, but the court denied the defendant’s request for a finding of bad faith and instead ordered an adverse inference instruction be given to the jury.
  • In Bird v. Wells Fargo Bank, the U.S. District Court for the Eastern District of California held that the defendant’s non-compliance with the court’s discovery order resulted in prejudice to the plaintiff and ordered the defendant to pay 50 percent of the reasonable costs and attorneys’ fees associated with the violated discovery order.

Hedda Litwin is the Editor of E-Discovery Bulletin and may be reached at 202-326-6022. The E-Discovery Bulletin is a publication of the National Association of Attorneys General. Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail hlitwin@naag.org.

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