The National Attorneys General Training & Research Institute

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

Electronic Discovery Bulletin October 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 Resources

EDiscovery expert Craig Ball has produced another must read article on mobile devices, focusing on how to extract responsive content from mobile devices in forms that are searchable and amenable to review. The article looks at simple, low cost approaches to getting relevant and responsive mobile data into a standard eDiscovery review workflow, and also offers a Mobile Evidence Scorecard designed to start a dialogue leading to a consensus about what forms of mobile content should be routinely collected and reviewed in eDiscovery.

EDiscovery provider CloudNine is hosting a free webinar on the eDiscovery process on Wednesday, October 31, 2018 at 1 pm ET. Special guest on the webinar will be Mike Quartararo, author of Project Management in Electronic Discovery, a 2016 book merging project management principles and eDiscovery best practices. Register here.

The Sedona Conference published the public comment version of The Sedona Conference Commentary on Information Governance, Second Edition. Updating the 2014 version, the Second Edition accounts for the changes in technology and law over the past four years and helps to enable an organization to make decisions about information for the overall good of the organization. It can be accessed at https://thesedonaconference.org and comments may be sent to comments@sedonaconference.org.

This article on JD Supra focuses on handling discovery data after a case is over. It addresses recovering data sent out for processing, determining the data to be retained and what the article calls “post mortem analysis.”

Recent Cases of Interest

In Franklin v. Howard Brown Health Center, the magistrate judge at the U.S. District Court for the Northern District of Illinois recommended that the plaintiff’s motion for discovery sanctions be granted to the extent that the “parties be allowed to present evidence and argument to the jury regarding the defendant’s destruction/failure to preserve electronic evidence.”

In Digital Ally, Inc. v. Taser International, Inc., the U.S. District Court for the District of Kansas granted in part and denied in part defendant’s motion to compel discovery, sustaining in part the plaintiff’s overbreadth and relevance objections to specific ESI requests by providing a compromised scope between the defendant’s proposed searches (deemed to be overbroad) and the plaintiff’s proposed searches (most deemed to be too narrow).

In In re Syngenta AG MIR 162 Corn Litigation, MDL 2591, another U.S. District Court for the District of Kansas case, the magistrate judge, stating that “there is no dispute that documents in TIFF format are easier to work with and enable depositions and court proceedings to run more smoothly,” denied the request of a party to relieve it from the production requirements of an ESI protocol order to produce ESI in TIFF image format and instead allow it to produce in native format.

In Ball v. George Washington University, the U.S. District Court for the District of Columbia denied the plaintiff’s motion for sanctions for allegedly destroying two surveillance videos, stating that “because Ball has not proven – even by a preponderance of the evidence – that GW permanently stored the surveillance footage, the court need not conduct further inquiry under Rule 37(e).”

In In re Domestic Airline Travel Antitrust Litigation, another U.S. District Court for the District of Columbia case, the court granted the plaintiffs’ motion for an extension of fact discovery deadlines for six months, finding “a defendant’s production of core documents that varied greatly from the control set in terms of the applicable standards for recall and precision and included a much larger number of non-responsive documents than was anticipated” (the core production of 3.5 million documents contained only 600,000 documents that were responsive).

In Small v. University Medical Center, the U.S. District Court for the District of Nevada, in a ruling so large it included a table of contents, accepted and adopted in part and overruled in part the Special Master’s Report and Recommendation and Final Findings of Fact and Conclusions of Law, sanctioning the defendant with an adverse inference instruction to the jury instead of the default judgment sanction recommended by the special master.

In In re: Abilify Products Liability Litigation, the U.S. District Court for the Northern District of Florida denied the plaintiff’s disclosure motion regarding two documents that defendant claimed were privileged and inadvertently disclosed, stating that although the defendant “might not have followed the precise terms of the protective order, the one-day delay in sending the privilege log can charitably be described as a situation where the expression ‘no harm, no foul’ applies.”

In The McDonnel Group, LLC v. Starr Surplus Lines Ins. Co., the U.S. District Court for the Eastern District of Louisiana granted the defendants’ requests for the plaintiffs to produce construction schedules in native format and to provide a privilege log for any documents withheld based on privilege, but denied the defendants’ request for attorney’s fees and other expenses occurred in conjunction with the defendants’ motion


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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