Electronic Discovery Bulletin February 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.

Free Webinar: Best Practices in eDiscovery Searches

With all the hype around technology assisted review (TAR), many have asked whether keyword searching is still viable. To resolve that question in the affirmative, discovery provider CloudNine will be conducting a webinar, Best Practices in eDiscovery Searching, on February 28, 2017 at 1 pm ET (12 pm CT, 11 am MT, 10 am PT). The webinar will cover goals for effective searching, what to consider prior to collecting ESI subject to search, mechanisms for culling prior to searching, mechanisms for improving search recall and precision, challenges to effective searching and recommended best practices for searching and validating your results. Karen DeSouza, CloudNine’s Director of Review Services, will conduct the webinar. Registration is at http://www.ediscovery.com/webcasts/best-practices-for-ediscovery-searching/.

Sedona’s Data Privacy Primer Open for Comment

The public comment version of the Sedona Conference Working Group 11’s Data Privacy Primer has been published. The Primer is intended to provide a practical framework and guide to basic privacy issues in the U.S. and to identify key considerations and resources, including key privacy concepts in federal and state law, regulations and guidance. Comments and questions may be submitted through April 16, 2017 to comments@sedonaconference.org. The Primer may be accessed at https://thesedonaconference.org.

New Evidence Rule 902 and Its Impact on eDiscovery

An amendment to Federal Rule of Evidence 902 that adds subpart (14), went into effect on December 1, 2016. FRE 902(14) essentially provides that electronic data collected pursuant to a process of digital identification will be presumed to be self-authenticating, and therefore will not necessitate the testimony at trial of forensic experts when best practices are used, or are certified in a written affidavit by a “qualified person.” David Cohen, a partner and Chair of the Records & eDiscovery Group at Reed Smith LLP, discussed the new amendment, including analysis and insight into how it will be applied, in a free webinar that can be accessed, after entering contact information, at http://www.x1.com/products/x1_distributed_discovery/videos/FRE_902_webinar_request.htm.

More From Sedona: TAR Case Law Primer

The post-comment version of the Sedona Conference Working Group 1’sTAR Case Law Primer, a comprehensive review of court decisions addressing the use of Technology Assisted Review (TAR) in civil discovery from 2012 through 2016. It discusses more than 35 decisions from state, federal and foreign courts and administrative agencies and covers such issues as whether a responding party may use TAR over the objection of a requesting party; if and when a court can compel a party to use TAR; whether parties are required to disclose or negotiate TAR methodologies; and the relationship between TAR and traditional methods of document culling and review. It may be accessed at https://thesedonaconference.org.

Case Law: No Duty to Preserve = No Spoliation

In Archer v. York City School District, no. 13-2826 (M.D. Pa. Dec. 28, 2016), a group of students and parents sued the school district in protest for its failure to renew their school’s charter, a decision the district said was based on the school’s performance and budgetary concerns. The district filed a motion for summary judgment, and in its response to the motion, plaintiffs alleged the district spoliated evidence when they deleted the email account of an assistant superintendent who had retired prior to the suit. The district argued that the emails were deleted as part of their data retention policy with no reasonably foreseeable duty to preserve at the time. The court granted the motion, finding plaintiffs had made no showing that the district had acted with intent to deprive plaintiffs of evidence, and had no duty to preserve at the time the account was deleted.

Case Law: Failure to Adhere to Discovery Deadlines

In SE Mobile LLC v. Global Cellular, no. 14-1975 (D.D.C. Dec. 22, 2016), plaintiff, a manufacturer of cell phone cases, settled an intellectual property suit against defendant, a distributor of cell phone accessories, in which defendant promised to make payments in return for plaintiff’s agreement to manufacture cell phone cases for defendant. Although defendant made the payments, plaintiff did not produce any products, so six month later, defendant stopped payments. Plaintiff then sued for payment, and defendant counterclaimed based on payments it had already made and plaintiff’s failure to produce products as agreed. Defendant served discovery requests, and after repeated extensions of the discovery deadline, plaintiff responded, but produced only 115 pages of documents. Defendant sent numerous letters asking for supplemental discovery without receiving a response, and defendant finally filed a motion to compel. Plaintiff did not oppose the motion, and it was granted. More than one month after the next due date, plaintiff produced more than 1,000 pages of new documents. However, defendant filed a motion for sanctions, arguing plaintiff had failed to produce any email attachments; had withheld documents referred to specifically at depositions; and had withheld documents as privileged that should have been produced under the protective order in the case. The court admonished plaintiff for “blatantly flouting” the scheduling order and producing its discovery late, ordering plaintiff to pay defendant’s attorney’s fees for both the motion to compel and the motion for sanctions.


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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