Electronic Discovery Bulletin November 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.

  • The U.S. District Court for the Southern District of Florida has updated its Local Rule 16.1 on Pretrial Procedures in Civil Actions which will go into effect on December 1, 2017. The main revision is a new 33-point eDiscovery checklist of what must be included in the attorneys’ Conference Report. A link to the Local Rules with the revisions may be accessed here.
  • One of the most significant challenges when seeking and sourcing eDiscovery software is where to start. After you have identified the problem, the next steps would be to identify the potential software solutions and form a list of providers. To assist in this effort, Complex Discovery has put together a top 100 aggregated list of providers with links to each provider’s website. Another source worth noting is the eDisclosure Systems Buyers Guide written by Andrew Haslam.
  • An article by Russell Beets of Kirkpatrick Townsend & Stockton LLP discusses BYOD policies and best practices. Beets first discusses the advantages and drawbacks of BYOD and then discusses eDiscovery considerations and best practices, including creating a written BYOD policy and a policy of acceptable use, determining which devices will be supported, defining who owns what data, developing minimum security requirements and crafting strategies for employee departures.
  • This article by Doug Austin of CloudNine discusses a problem arising during a search of inconsistent email addresses, which may be encountered when dealing with legacy files. In this situation, Austin encountered Exchange x500 addresses, and he outlines in detail how the problem was solved.

Recent Court Decisions

  • In Padron v. Watchtower Bible and Tract Society of New York, Inc., a California Court of Appeals affirmed the trial court’s order for monetary sanctions of $4000/day against defendant, finding that defendant had abused the discovery process and the court’s order was neither arbitrary nor capricious.
  • In IDC Financial Publishing, Inc. v. Bonddesk Group, LLC,the U.S. District Court for the Eastern District of Wisconsin granted the plaintiff’s motion to compel production of more than 600 documents previously produced with extensive non-responsive redactions applied. The court found defendants did not assert any privilege or provide a compelling reason for their extensive redactions.
  • In Fairholme Funds, Inc. v. U.S., the U.S. Court of Federal Claims granted plaintiff’s motion to compel a “quick peek” at approximately 1500 documents withheld as privileged pursuant to a bank authorization and deliberative process privileges. The court noted the parties’ agreement that the clawback agreement in their protective order would be governed by Rule 502(d) and reasoned that the quick peek would expedite resolution of the dispute.
  • In Harleysville Insurance Co. v. Holding Funeral Home, Inc., the U.S. District Court for the Western District of Virginia sustained the plaintiff’s objections to the magistrate’s ruling that plaintiff’s placement of privileged documents on a file share site and distribution of the hyperlink to access that information, without providing any protection for the site, was inadvertent and resulted in a failure to take reasonable steps to protect the information.
  • In GN Netcom, Inc. v. Plantronics, Inc., the U.S. District Court for the District of Delaware specified jury instructions in order to address the defendant’s spoliation for intentional and admitted deletion of emails, as well as stipulated facts the court would read to the jury.
  • In Rembrandt Diagnostics, LP v. Innovacon, Inc., the U.S. District Court for the Southern District of California agreed with defendant that the requests for production of the email from two custodians, consisting of more than one million emails, were disproportionate, and the necessary information could be identified from defendant at deposition.
  • In Pugh v. Junqing, the U.S. District Court for the Eastern District of Missouri narrowed the motion to compel for “all social media content which has any relevance to this case” before granting the motion in part.

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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