Electronic Discovery Bulletin September 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.

  • EDiscovery columnist Kelly Twigger posits that buying eDiscovery services is like buying a car – when you walk away from the deal you want to be satisfied with what you paid for the quality you received. To help achieve this, Twigger has written a Quick Reference Guide to Understanding eDiscovery Pricing which focuses on the basic components of pricing and some guidance on each of the components.

  • EDiscovery services provider Exterro has listed seven security measures that can help you and your office preserve data that may be lost when employees leave.
    • Understand who has access to what, and implement policies to track employee access and put procedures in place to create alerts when data is accessed inappropriately;
    • Evaluate archiving policies to identify data that must be stored to comply with regulatory requirements or data retention policies and streamline the process for identifying duplicates;
    • Clearly communicate data management policies to employees and third parties on a regular basis;
    • Use technology to track employee changes, such as new hires, departures and job position changes;
    • Spell out noncompete and nondisclosure policies in employee agreements.
    • Coordinate network security with physical security; and
    • Conduct exit interviews to remind departing employees of their obligations.

  • The Association of Certified eDiscovery Specialists (ACEDS) is offering a free webinar on October 18, 2017 at 1-2 pm ET on How to Talk to Your IT Department About Legal Holds. Registration required.

  • Technology services company Percipient notes that proper use of search functionality is still an important tool in document reviews. The company notes that eDiscovery software uses “noise words,” which are words so common as to be deemed unimportant for search purposes, when building a search index. However, those noise words could create problems if you are searching for similar phrases, so this article provides some advice on avoiding the issue as well as a list of default noise words by platform.

  • The Sedona Conference released the public comment version of The Sedona Conference Federal Rule of Civil Procedure 34 Primer, which is intended to provide guidance and observations on the December 2015 amendments to Rule 34.

Recent Court Decisions

  • In New Mexico Oncology and Hematology Consultants, Ltd. v. Presbyterian Healthcare Services, the U.S. District Court for District of New Mexico found that although there were issues with the implementation of defendant’s litigation hold, there was no evidence that defendant acted in bad faith. The court ruled that plaintiff’s requested sanctions were not warranted and instead ordered defendant to pay plaintiff costs for activities related to its overdesignation of privileged documents as well as 75 percent of the costs of the motion for sanctions.

  • In Procaps S.A. v. Patheon Inc., the U.S. District Court for the Southern District of Florida found that defendant, as the prevailing party in this antitrust case, was entitled to fees and costs for the entire action and granted its motion for attorney’s fees and non-taxable costs in the amount of $18,494,846.

  • In Ehrenberg v. State Farm Mutual Automobile Insurance Co., the U.S. District Court for the Eastern District of Louisiana denied State Farm’s request for plaintiff’s social media data as not all “reasonably calculated to lead to the discovery of admissible evidence,” and instead identified a level of social media data to be produced that considered relevance and proportionality.

  • In Rabin v. PricewaterhouseCoopers LLP, the U.S. District Court for the Northern District of California held that in light of the parties’ jointly filed discovery brief and agreement to use TAR, the timeline was aggressive but not unreasonable and ordered a date for production to begin.

  • In Pertile v. General Motors, LLC, the U.S. District Court for the District of Colorado agreed with the magistrate judge that defendant’s proposed discovery protocol presented too many roadblocks for plaintiff’s expert and ordered defendant to produce all data to plaintiffs to give them an opportunity to review the materials on which defendant’s expert based her opinions.

  • In Ronnie Van Zant, Inc. v. Pyle, the U.S. District Court for the Southern District of New York imposed an adverse inference instruction against certain defendants for their failure to preserve text messages in the possession of a non-party, because the court found those defendants had control of the non-party’s text messages.

  • In Irth Solutions, LLC v. Windstream Communications LLC, the U.S. District Court for the Southern District of Ohio, despite the existence of a clawback agreement indicating that inadvertent production of privileged documents does not constitute a waiver of privilege, found that privilege was waived by the inadvertent but “completely reckless” production of privileged materials.

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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