Electronic Discovery Bulletin October 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.

  • In view of this already severe hurricane season, Kroll Ontrack has offered some advice for data recovery from a wet device:

--Don’t assume that data is unrecoverable;

--Never attempt to plug in or turn on water-damaged devices;

--Do not shake, disassemble or try to clean a damaged hard drive or server;

--Never try to dry water-damaged media by opening or exposing it to heat;

--Do not try to operate visibly damaged devices;

--Do not try to freeze-dry media;

--Do not use common utility programs on broken or water-damaged devices; and

--For critical situations, contact a data recovery expert before any attempts to reconfigure, reinstall or reformat.

  • To help practitioners tackle large document reviews, eDiscovery provider Percipient suggests leveraging metadata fields. File names or email subject fields can be used to filter generic or irrelevant data. File names can also be helpful in finding duplicates and near duplicates, because often documents will have the same name or may be marked with version numbers.

  • A CLE-approved webcast entitled “Murphy’s eDiscovery Law: How to Keep What Could Go Wrong From Going Wrong,” presented by eDiscovery provider CloudNine, is scheduled for December 1, 2017 at 10 am CT. The webcast will discuss recent eDiscovery disasters and highlight the common characteristics of those disasters and what can be done to avoid them. The webcast is free, but registration is required.

  • The Sedona Conference published the third edition of the Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production. This final version is available from the Sedona Conference website.

Recent Court Decisions

  • In Barry v. Big M Transportation, Inc., the U.S. District Court for the Northern District of Alabama denied plaintiffs’ motion for a default judgment for defendant’s failure to preserve a tractor-trailer and its black box involved in an accident, finding both a lack of intent to deceive and a lack of prejudice to plaintiffs.

  • In Mann v. City of Chicago, the U.S. District Court for the Northern District of Illinois found that proportionality factors allowed discovery from some of the requested custodians, noting defendant’s failure to provide even a rough estimate about the alleged additional burden.

  • In Blosser v. Ashcroft, Inc., the U.S. District Court for the Western District of Washington denied plaintiffs’ motions to compel 1) against defendant 1 for failure to meet and confer beforehand; 2) against defendant 2 because his attorney certified he does not possess the data; and 3) against defendant 3 because defendant had already proposed several deposition dates.

  • In Mitcham v. Americold Logistics, LLC, the U.S. District Court for the District of Colorado granted in part defendant’s motion for sanctions for plaintiff’s failure to preserve the original copy of the journal she made during her employment by granting leave to re-open plaintiff’s deposition, but denied defendant’s request for fees and expenses associated with the filing of the motion.

  • In Barcroft Media, Ltd. v. Coed Media Group, LLC, the U.S. District Court for the Southern District of New York denied plaintiff’s motion for sanctions for failing to preserve web pages containing disputed images, finding the motion “borders on frivolous” because plaintiff couldn’t even show the evidence at issue was lost.

  • In In re Cook Medical, Inc., the U.S. District Court for the Southern District of Indiana limited defendants’ access to native files, noting that the plaintiffs had already produced the social media as PDFs.

  • In Catrinar v. Wynnestone Communities Corp., the U.S. District Court for the Eastern District of Michigan denied plaintiff’s motion for sanctions for fabricating and producing false evidence, finding defendant’s production of two versions of an email failed all four factors of the Harmon test to determine whether a failure was due to willfulness or bad faith.

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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