The National Attorneys General Training & Research Institute

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

Electronic Discovery Bulletin March 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.

As the volume of ESI collected for litigation increases, the task of filtering through “junk” gets harder as well. A helpful tool that can expedite and streamline the culling of irrelevant information is a dashboard. Many eDiscovery platforms include dashboards, which are user interfaces that can organize and present information in a very readable format. In this article, eDiscovery services provider Percipient offers some ways to leverage dashboards to improve your document review workflow.

EDiscovery provider CloudNine is hosting a free webinar on Understanding eDiscovery in Criminal Cases on March 21, 2018 at 1 pm ET. It will include such topics as how data is acquired in criminal matters, data exchange formats and protocols, time issues specific to criminal matters, working with social media as evidence and border entry considerations. Register for the webcast here.

Audio and video files are becoming more widespread The fact that people can record video and audio on their smartphones means media files are appearing more regularly in ediscovery cases, particularly in those involving personal injury or criminal matters. As an example, people involved in or witnessing an auto accident are likely to document the accident on their phone, and that recording would be relevant and subject to discovery requests. This article by eDiscovery provider Everlaw discusses some strategies for reviewing media files in litigation.

EDiscovery provider Exterro has published its Comprehensive Guide to Buying e-Discovery Software which addresses such issues as 1) what to understand about your eDiscovey process before you talk to vendors; what key stakeholders you need to engage in the procurement process; and 3) how to make a compelling business case once you’ve determined the right e-Discovery software for your needs. The Guide can be downloaded here after providing your email address.

Public comments on the Sedona Conference’s Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations are due on March 26, 2018. The commentary may be downloaded from the Sedona Conference website at www.thesedonaconference.org. Comments may be submitted to comments@sedonaconference.org.

This article on the eDiscovery Team blog discusses a proportionality analysis provided by U.S. Magistrate Judge G. Michael Harvey in a recent case. Judge Harvey succeeded Judge John Facciola on the U.S. District Court for the District of Columbia. The case discussed is Oxbow Carbon & Minerals, LLC v. Union Pacific Railroad Company, no. 11-1049 (D.D.C. Sept. 11, 2017).

An article by Kelly Twigger of ESI Attorneys, Striking the Balance on When to Incur Costs for eDiscovery, offers tips on managing discovery costs. The article suggests you should: 1) Have an established relationship with an outside counsel or consultant who knows your client’s systems and how their custodians create and store data; 2) Identify your client’s key custodians and their data sources, as well as any additional data sources that are system-based; and 3) Identify any data issues that you will need to negotiate with opposing counsel.

In an article in the winter issue of the ABA Litigation News, Associate Editor Catherine Chiccine writes about a recent case in which the attorney inadvertently produced privileged confidential information on some 50,000 customers of her client. The article includes thoughts on preventing such disclosure as well as what to do if a privileged document is inadvertently disclosed.

Recent Decisions to Note

In Performance Pulsation Control, Inc. v. Sigma Drilling Technologies, LLC, the U.S. District Court for the Eastern District of Texas granted plaintiff’s motion to compel in part, ordering defendants to produce documents related to four specific categories, but within certain parameters.

In Hernandez v. Tulare County Correction Center, the U.S. District Court for the Eastern District of California denied plaintiff’s motion for sanctions, finding that defendants did not act with intent to deprive and there was no prejudice to the plaintiff from the loss of the videos and photos of an accident suffered by the plaintiff, who was a state prisoner at defendant’s correctional facility.

In Forman v. Henkin, the New York Court of Appeals reinstated the trial court’s ruling requiring the plaintiff to provide photos of plaintiff posted on her “private” Facebook account that were taken before and after her injuries.


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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