The National Attorneys General Training & Research Institute
Electronic Discovery Bulletin April 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 Tools and Publications
EDiscovery guru Craig Ball recently issued a blog post about a method of preserving Alexa app history. He notes there is no way to download the historic data or request, and that within the Alexa app you cannot search of filter the history of voice interactions with Alexa. Ball concedes that although his method is somewhat unwieldy, it is simple and requires no special software or expertise.
This article by eDiscovery provider Percipient addresses what to do when you receive a production with a load file error. It discusses three common load file errors: 1) wrong encoding types; 2) mismatched line numbers; and 3) field formatting errors, suggesting remedies for each type of error.
The Sedona Conference and its Working Group 11 on Data Security and Privacy announced the publication of the public comment version of the Incident Response Guide, designed to be a practical but comprehensive guide to help practitioners deal with the issues arising when a data breach occurs. The guide can be downloaded at https://thesedonaconference.org/publications.
In other Sedona Conference news, their Working Group I on Electronic Document Retention & Production published its Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests. The Primer provides a framework for conversations between requesting and responding parties about what is being sought and what will be produced. It is based on advice and observations from requesting and responding parties who have successfully implemented them as well as legal decisions interpreting the amended Rules. The Primer can be downloaded at https://thesedonaconference.org/publications.
EDiscovery provider CloudNine is hosting a webinar on using Technology Assisted Review (TAR) on April 25, 2018 at 1 pm ET. It will include such topics as the different forms of TAR and how they are used; court acceptance of predictive coding; considerations for using predictive coding; and how to get started with using predictive coding in a case. Register for the webinar here.
This article by attorney Michele Lange, author of the ABA’s “Electronic Evidence and Discovery: What Every Lawyer Should Know,” advises practitioners to exercise proportionality when requesting tax returns and related documents. She recommends limiting requests for financial documents by year (or be prepared to have the court limit them for you).
EDiscovery provider Everlaw is hosting a webinar on “dark data” on Wednesday, April 18, 2018 at 1 pm ET. Their VP of Security Lisa Hawke and CEO Al Shankar will discuss specific examples of “dark data,” including audio and video files of phone calls and meeting recordings, images of patent application and schematics and foreign language email, as well as how to access it. Register for the webinar here.
Recent Cases to Note
In U.S. ex rel. Proctor v. Safeway, Inc.,the U.S. District Court for the Central District of Illinois allowed the relator’s motion to compel in part, ordering defendant to conduct and complete a TAR process on 575,000 issue files previously produced based on key number search alone, finding that search was not a reasonable inquiry under Rule 26(g).
In Apex Colors, Inc. v. Chemworld International, Ltd., Inc.,, the U.S. District Court for the Northern District of Indiana denied defendants’ motion to compel the plaintiff to produce supplemental documents, finding that defendants had not met their burden of showing that the plaintiff had control of the data.
In Terry v. Register Tapes Unlimited, Inc., the U.S. District Court for the Eastern District of California found defendant’s production was inadequate, based on the size of the production because although defendant claimed it had to cull tens of thousands of documents, it produced fewer than 1,000 records where a keyword appeared only 50 times.
In Craig v. Kropp, the U.S. District Court for the Middle District of Florida granted in part defendant’s motion to compel production, but limited the scope of the requests, finding that the requests were relevant but overly broad.
In Fish, LLC v. Harbor Marine Maintenance & Supply, Inc., the U.S. District Court for the Western District of Washington found that ineffective record-keeping systems were not an excuse for avoiding discovery, granting in part the plaintiffs’ motion to compel payroll and tax return information, although limiting the latter to the most recent two years.
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 firstname.lastname@example.org.