Electronic Discovery Bulletin January 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.

Free Webcast: What Every Attorney Should Know Absout eDiscovery in 2017

The webcast will cover key terms, rules, duties and case law and is aimed at giving practitioners the tools and resources necessary to meet the challenging eDiscovery obligations that attorneys will face in 2017. Presenters are Doug Austin, VP of Operations and Professional Services at CloudNine, and Karen DeSouza, Director of Review Services, In-House Counsel. The webcast is scheduled for January 25, 2017 at 10 am PST, and registration is at http://www.ediscovery.co/webcasts/what-every-attorney-should-know-about-ediscovery/.

Your eDiscovery Case Is Not Over Until You’ve Properly Closed It.

Its certainly a milestone when an eDiscovery case is finally over, but as eDiscovery provider Exterro points out, there are several steps that should be taken before the case is officially closed, as noted below:

  • Draft any closing memoranda;
  • If an outside vendor was used, close all projects and hosting;
  • Reinstate normal document retention policies;
  • Document the entire closing process; and
  • If applicable, conduct a post-case meeting with applicable parties (IT, counsel, paralegals, etc.) to discuss where gaps occurred and what could fix them.

Case Law: Proportionality Applied to Request for Forensic Examination

In Hespe v. City of Chicago, no. 13-7998 (N.D. Ill. Dec. 15, 2016), plaintiff Kelly Hespe, a Chicago police officer, sued the City of Chicago and two individual officers for sex discrimination and creating a hostile work environment. She alleged that her supervisor Gerald Breiman, one of the defendant officers, sexually harassed her; that the City failed to protect her; and that Sarah McDermott, the other defendant officer, threatened her for rebuffing Breiman. The defendants alleged that Hespe and Breiman were in a consensual romantic relationship. In response to defendants’ discovery requests, Hespe produced emails, texts, photos and voicemails she had received from Breiman. Defendants also took the deposition of Hespe’s mother, who testified she had thousands of additional texts and voicemails that Hespe had sent to her because of lack of storage on her own system and, pursuant to a subpoena, produced all of the ESI she had been sent, including 6000 texts. Hespe testified that the texts her mother produced were also on her own system and, although she wasn’t sure whether she had given all or some of them to her own attorney, she did not delete anything other than inappropriate photos received from Breiman. Defendants then asked for an inspection of Hespe’s computer and cell phone to search for ESI that had not been produced; Hespe objected; and defendants moved to compel. The magistrate judge denied the motion, finding that the forensic inspection was not proportional to the needs of the case. Defendants appealed the order, and the district court affirmed, finding the magistrate correctly applied FRCP 26(b)(2)(C)(iii). The court found that Hespe had turned over all ESI she had, and the cost of a forensic examination, as well as the infringement on her privacy, outweighed any benefit.


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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