Electronic Discovery Bulletin February 2018

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.

Software services pricing is always a big issue, and Kyle Poyar of OpenView has published an article, Why SaaS Companies are Moving Away from Pricing Transparency (and Why That's a Bad Thing), finding that fewer SaaS companies are publishing their pricing online. Poyar discusses some potential reasons for this shift away from transparency, as well as some arguments as to why they should publish their prices.

The Sedona Conference published its initial public comment version of its Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations. The commentary addresses how creating and storing an organization’s information on devices owned by employees impacts the organization’s discovery obligations. It can be accessed at www.thesedonaconference.org/publications.

Brett Burney of Burney Consultants and Chelsey Lambert of Lex Tech Review have teamed up to publish the 2018 eDiscovery Buyer's Guide, which contains reviews for products in several categories, such as cloud-based SaaS platforms for processing and review. The guide also includes articles from key thought leaders in the industry.

Exterro is hosting a free webinar on the ACEDS site, In-Place Preservation: Locking Down Data Without Collecting It, on Wednesday, February 21, at 1 pm ET. Speakers are Bobbi Basile, Managing Director, HBR Consulting; Mike Hamilton, Director – eDiscovery Programs, Exterro; and Chris Sitter, Information Security Director of Forensic Technology, Juniper Networks. Additional information is available here.

A white paper based on Exterro’s 2018 Federal Judges Survey, Good Faith Cooperation - Judges on Improving E-Discovery, discusses judges’ recommendation on such issues as how attorneys can make better use of the 2015 FRCP amendments and how judges view new technology and eDiscovery tools.

Recent eDiscovery Decisions to Note

In Firefighters' Retirement System v. Citco Group Limited, the U.S. District Court for the Middle District of Louisiana denied plaintiffs’ motion to compel after the parties had agreed upon search terms and custodians, finding that plaintiffs’ request to email every defendant entity to ask whether anyone had knowledge relevant to the litigation was unreasonable and unduly burdensome.

In Waymo LLC v. Uber Technologies, Inc., the U.S. District Court for the Northern District of California held that defendant had a duty to preserve ESI, because a reasonable party in defendant’s position would have reasonably foreseen the litigation.

In In re Simply Orange Juice Marketing and Sales Practices Litigation, the U.S. District Court for the Western District of Missouri held that the burden and expense of producing emails and data from the hard drives would outweigh its likely benefits, but if the plaintiffs could demonstrate there was prejudice from the withheld evidence during trial, the court would allow a trial recess if the discovery was necessary for trial.

In Industrial Quick Search, Inc. v. Meirsonne, the U.S. District Court for the Southern District of New York, while withholding judgment on defendant attorney’s negligence, found that the obligation to preserve evidence “runs first to counsel,” so attorneys must explain to clients the need to preserve relevant documents. The court also noted that an attorney’s obligation regarding preservation of evidence includes both the implementation of a legal hold as well as monitoring the client’s compliance with the legal hold.

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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