Electronic Discovery Bulletin December 2016
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.
Free Guide to Best Practices for Legal Holds Available
EDiscovery provider Kroll Ontrack released Preventing a Legal Hold Wildfire, an updated guide with tips and best practices to managing the legal hold process. The guide contains strategies for developing legal hold procedures, determining preservation triggers and releasing a legal hold. The guide is available at no cost after submitting contact information at http://www.ediscovery.com/legal-hold/.
Sedona Publishes Updated Commentary on Proportionality
The Sedona Conference published the public comment version of the third iteration of its Commentary on Proportionality in Electronic Discovery, which was intended to reflect the emphasis on proportionality in the 2015 FRCP amendments. The Commentary can be downloaded at https://www.thesedonaconference.org. Questions and comments may be submitted by January 31, 2017 to email@example.com.
Cooperation in EDiscovery: Some Issues to Start With
Both the Federal Rules of Civil Procedure and the courts emphasize cooperation between the parties, but the issue often is where to start. EDiscovery provider Percipient offers the following suggestions:
- Relevant dates and time frames that will be searched for documents;
- Identity and number of custodians; and
- Phasing of rolling productions.
For the Technically Inclined: PDFs as Containers for E-Discovery Review
An article by eDiscovery provider Beyond Recognition posits that the key to many eDiscovery document review challenges is to think of PDFs as content containers with almost limitless options om how they are filled, arranged and navigated. The article outlines some powerful functions that can be performed with pdfs, including the following:
- embedding native files in PDFs, so there is a visible page number and labels;
- self-authenticating embedded files, by calculating and using the hash value as a file name when embedded;
- processing message attachment groups as single PDFs, in order to review relevant files at one time;
- bookmarking multiple document PDFs, to navigate to specific attachments; and
- embedding fielded or tagged data that can be easily indexed.
The article can be accessed at http://beyondrecognition.net/pdfs-versatile-containers-e-discovery-review/.
Free Webinar on Automation in EDiscovery
The free replay of 10 Years Forward, 10 years Back: Automation in EDiscovery offered by CloudNine Technologies highlights the progress of ediscovery technologies during the last decade and looks ahead to the next 10 years of data discovery. It can be accessed at http://www.ediscovery.co/legacy/online-stream-12-1-16/.
Case Law: Overbroad Discovery Requests
In Meredith v. United Collection Bureau, Inc., no. 1:16 CV 1102 (N.D. Ohio Nov. 10, 2016), plaintiff alleged that defendant, a debt collection service, violated the Telephone Consumer Protection Act (TCPA) by making multiple autodialed pre-recorded calls to plaintiff’s cell phone without her consent. She sought class certification, served discovery requests on defendant and when not satisfied with defendant’s response, filed a motion to compel. One of plaintiff’s discovery requests was for information about potential members of the class, including information about the calls, the software used to make the calls and whether call recipients had notified defendant it had the wrong number. Defendant argued that it had already produced all information it had relevant to the calls, and a manual search would be required in order to further search its database in the way plaintiff requested. Defendant argued that such a search would be unduly burdensome, as it had more than 278,000 accounts to review. The court determined that plaintiff’s request was overbroad and unduly burdensome and denied the motion to compel.
Case Law: Unopposed Search Terms
In Venturdyne, Ltd d/b/a Scientific Dust Collectors v. Carbonyx, Inc. d/b/a Carbonyx Corbon technologies, no. 14-00351 (N.D. Ind. Nov, 15, 2016), the parties agreed to use keywords to search defendant’s ESI. Plaintiff subsequently sent defendant a list of 126 keywords; and the parties argued over proposed deletions to the list. In the end, there were 78 keywords to which neither party had objected. Plaintiff then sent follow-up emails to defendant, and receiving no response, filed a motion to compel. The court noted that although defendant contended it had produced more than 12,000 pages of documents, the documents were generated using the search terms “Scientific Dust Collectors,” and “Scientific,” which were not only its business names but also redundant terms and not likely to produce responsive data. The court ordered defendant to produce documents flagged by the 78 unopposed search terms and to pay the plaintiff’s reasonable expenses in bringing the motion.
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 firstname.lastname@example.org.