Electronic Discovery Bulletin May 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.

New Tools and Publications

EDiscovery services provider CloudNine is offering a free webinar on Wednesday, May 30, 2018 at 1 pm ET called “EDiscovery for the Rest of Us,” which will cover such topics as the effect of automation on eDiscovery, challenges from various sources of ESI data, ethical duties and rules for managing eDiscovery, getting data through the process efficiently and key components for an eDiscovery solution. Register here.

EDiscovery provider Catalyst has outlined four areas to enable practitioners to reduce legal hold and collection expenditures. The article addresses cost savings with in-person custodian interviews, third party data collection fees, vendor processing fees and software licenses.

This article by eDiscovery provider Complex Discovery discusses some of the factors to be considered in selecting eDiscovery software. The article also lists what it calls “quick takeaways:”

  • Some software approaches may mitigate security risks more comprehensively, so it is important to understand current and future security requirements;
  • The first focus should be on the software’s ability to accomplish required tasks, after which it is reasonable to consider its integration and automation.
  • A combination of software solutions may be required to accomplish complex task requirements satisfactorily and may include both on-premise and off-premise offerings.

A general clawback agreement does not necessarily prevent waiver of the attorney-client privilege, according to the U.S. District Court for the Southern District of Ohio and as discussed in this ABA article in its Litigation News publication by Candice Garcia-Rodrigo, a contributing editor. The article discusses the case and makes the point that clawback agreements need to be carefully and specifically drafted to address the specific elements of Rule 502(b).

The Association of EDiscovery Specialists (ACEDS) is hosting a free webinar on “Preventing Wasted Costs in eDiscovery” on Tuesday, May 22, 2018 at 1 pm ET. Speakers are Brian Schrader, President & CEO, and Barry Schwartz, VP of Advisory Services, both of BIA. Register here.

This article by Ralph Losey on his eDiscovery blog posits that project cost estimation is key to opposing ESI discovery as disproportionately burdensome under Rule 26(b)(1). Losey uses Mann v. City of Chicago, no. 15-9197 (N.D. Ill. 2017), a highly visible civil rights case in which the City did not attempt to estimate the costs of the review it opposed, to illustrate his points.

This blog post by eDiscovery expert Bill Dimm discusses his challenge to an audience to create keyword searches that would work better than TAR for two topics. One half of the room was tasked with finding articles about biology and the other half searched for articles about current law. Read his blog post to learn the results.

Recent Court Decisions

In Exxon Mobil Corp. v. Attorney General, the Massachusetts Supreme Court rejected Exxon’s claim that the CID was overbroad and unduly burdensome and affirmed the order granting the Attorney General’s cross motion to compel Exxon’s compliance with the CID. Assistant Attorney General Richard Johnston represented the Attorney General.

In Document Technologies, Inc. v. LDiscovery, LLC, a lawsuit filed between eDiscovery providers in which plaintiffs alleged breach of contract, interference with client relationships and misappropriation of trade secrets, the Second Circuit affirmed a district court ruling, finding there was no basis to infer that the defendant engaged in any wrongdoing.

In Cen Com, Inc. v. Numerex Corp., the U.S. District Court for the Western District of Washington found plaintiff’s refusal to comply with defendant’s request for discovery using specific search terms was not justified, and ordered plaintiff to fully comply with the subpoenas served by defendant and produce all responsive documents.

In BankDirect Capital Finance, LLC v. Capital Premium Financing, Inc., a magistrate of the U.S. District Court for the Northern District of Illinois recommended that the court allow the evidence to be presented to the jury to enable it to determine the impact, if any, the non-production of challenged emails has on the merits of the parties’ claims. If the court was not inclined to go to the jury, then the magistrate recommended a permissive spoliation instruction be given to the jury about the destruction of the emails, advising them that they could consider the deletion of the emails to be evidence in considering claims and counter-claims.

In Davis v. Electronic Arts Inc., the U.S. District Court for the Northern District of California ruled that the plaintiff’s failure to fully comply with defendant’s discovery requests were sanctionable under Rule 37, finding a monetary sanction of $25,000 was justified in addition to evidentiary 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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