The National Attorneys General Training & Research Institute

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

Electronic Discovery Bulletin August 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.

A free webcast by eDiscovery provider CloudNine will address what information is needed to make an informed decision about whether or not to litigate and how that information can be gathered. It will include such topics as 1) covering your bases while you decide; and 2) how much each gigabyte can cost you. The webinar will be given on August 29, 2018 at 1 pm ET. Register here.

A general clawback agreement does not necessarily prevent waiver of the attorney-client privilege, as discussed in this ABA Litigation News article by California practitioner Candice Garcia-Rodrigo. The article focuses on the U.S. District Court for the Southern District of Ohio ruling in Irth Solutions, LLC v. Windstream Communications LLC.

The New York Law Journal published an article by Christopher Boehning and Daniel Toal, litigation partners at Paul, Weiss, Rifkind. Wharton & Garrison, providing thoughts and review on the Sedona Conference Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations.

Noted eDiscovery expert Craig Ball, who is also a computer forensic examiner, is the main presenter at an upcoming webinar on Negotiating a Forensic Examination Protocol to be given on Tuesday, August 28, 2018 at 1 pm ET. The webinar is hosted by the Association of Certified eDiscovery Specialists (ACEDS) and is free. Register here.

The Sedona Conference Working Group 1 on Electronic Document Retention & Production published the public comment version of the Sedona Conference Principles and Commentary on Defensible Disposition. The publication is designed to provide guidance on the adequate and proper disposition of information that is no longer subject to a legal hold and has exceeded the applicable legal, regulatory and business retention requirements. Public comments may be submitted to comments@sedonaconference.org. The publication may be downloaded at https://thesedonaconference.org/publications.

TAR update: On July 18, 2018 the Chief Administrative Judge of the Courts in New York issued an administrative order adopting a new rule for the New York Commercial Division supporting the use of TAR. While the rule encourages the parties to use the most efficient means to review documents, the use of TAR still remains optional.

Recent Case Law of Note

In Shenwick v. Twitter, Inc., the U.S. District Court for the Northern District of California denied the plaintiff’s request to compel the defendant to produce protected direct messages of custodians who were not parties, pursuant to the Stored Communications Act.

In Blank v. TOMORROW, PCS, LLC, the U.S. District Court for the Eastern District of Louisiana denied the plaintiff’s motion for sanctions for spoliation of evidence, holding that the plaintiff failed to demonstrate that the defendant acted with a culpable mind where Yahoo! deleted defendant’s emails.

In Curtis v. Progressive Northern Insurance Co., the U.S. District Court for the Western District of Oklahoma, noting that the non-party subpoena at issue did not require travel or attendance of any witnesses and that the plaintiff was requesting production of ESI, found no violation of the 100-mile limitation for electronic documents pursuant to Rule 45, thereby granting plaintiff’’s motion to compel compliance with the non-party subpoena.

In U.S. v. Supervalu, Inc., the U.S. District Court for the Central District of Illinois denied the defendants’ motion for sanctions, noting that defendants would have an opportunity to question the relators about relevant matters, including the destruction of the computer and any metadata that may have been lost, and if at that time the court finds that a party acted in bad faith, the court would then impose sanctions.

In Singer Oil Co., LLC v. Newfield Exploration Mid-Continent, Inc., the U.S. District Court for the Western District of Oklahoma imposed sanctions on the plaintiff for failing to disclose communications its counsel had with third parties, which defendant discovered when reviewing the counsel’s time records.

In Hinostroza v. Denny's Inc., the U.S. District Court for the District of Nevada granted the defendant’s motion to compel discovery documents from various sources related to plaintiff’s claim of injuries, including employment records, details of a prior accident and medical records, noting that the burden is on the party resisting discovery to show in detail why a discovery request should be denied, rather than make boilerplate objections.

In In Re Broiler Chicken Antitrust Litigation, the U.S. District Court for the Northern District of Illinois denied defendant’s motion for a protective order, ruling the defendant had not made a threshold showing that the information requested by plaintiffs was not reasonably accessible because of undue burden or cost (and even if they had, the plaintiffs had shown good cause for requesting custodial searches of ESI for the entire time frame set forth in the ESI Protocol).


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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