The National Attorneys General Training & Research Institute

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

Electronic Discovery Bulletin December 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.

  • FRE 902(14), which provides that electronic data recovered “by a process of digital identification” is to be self-authenticating, became effective on December 1, 2017. It could obviate the need for testimony at trial by a forensic or technical expert and instead such properly collected electronic evidence could be certified through a written declaration by a “qualified person.” Blogger John Patzakis of x1 Social Discovery provides a sample certification under FRE 902(14).

  • Document review is often a lengthy process involving complex searches for potentially responsive data. So after all the data has been searched, when has the producing party completed document review to the satisfaction of the court? One response is discussed in this article by Everlaw, which looks at the question through the 2017 Davine v. Golub Corp. case.

  • Migrating to a new litigation support system requires careful planning, and eDiscovery provider D4 outlines these <href="#sthash.Dqj7C4GR.dpbs">seven steps to facilitate that process: 1) create and prioritize your database inventory; 2) identify the components that will be migrated; 3) manage redactions and annotations; 4) export in priority order; 5) manage traditional export data items; 6) manage non-traditional export data items; and 7) perform quality control of the new database.

  • Now that 2017 is coming to a close, eDiscovery provider CloudNine is offering a webinar on their choice of the most important eDiscovery case law decisions of the year on January 11, 2018 at 1 pm EST. Presenters will be Doug Austin, CloudNine VP of Products and Professional Services and litigation support consultant Tom O’Connor. The webinar is free, but registration is required.

  • The Association of Certified eDiscovery Specialists (ACEDS) is offering a free webinar on “Risks and Responsibilities: The Ethics of Legal Holds” on January 16, 2018 at 1 pm EST. Topics to be addressed include 1) the FRCP and the ABA Model Rules on legal holds; 2) key FRCP changes that affect legal hold responsibilities; 3) court rulings on legal hold practices; 4) essential steps to ensure a successful legal hold process and 5) using automated solutions for legal holds. Register here.

  • Regardless of which software they load data into, most entities use the processing capability to process emails, usually from Outlook Personal Storage Table (PST) files. EDiscovery provider CloudNine cautions that many users still have Outlook open with the PST file opened when they attempt to upload the PST file or when they try to create a ZIP file containing the Outlook PST. When that happens, CloudNine notes that the resulting ZIP file that is created will almost invariably be corrupted or empty. They advise making sure that Outlook is closed or at least that the PST file is closed within Outlook.

Recent Court Decisions

  • In Winfield v. City of New York, a suit over alleged discrimination in the City’s affordable housing program, the U.S. District Court for the Southern District of New York denied plaintiff’s objections to defendant’s use of TAR software after the court’s in camera review of the process and a sample set of documents but ordered defendant to provide copies of specific documents where the parties disagreed on their responsiveness.

  • In U.S. Equal Employment Opportunity Commission v. GMRI, Inc., the U.S. District Court for the Southern District of Florida denied the plaintiff’s motion for summary judgment and for an adverse inference instruction as sanctions for defendant’s spoliation of paper applications, interview booklets and emails, but allowed the plaintiff to present evidence of the purportedly destroyed and/or missing items to the jury and argue there was bad faith.

  • In Abbott Labs v. Finkel, the U.S. District Court for the District of Colorado denied defendant’s motion to dismiss the plaintiff’s conversion claim that defendant had disclosed plaintiff’s confidential information and trade secrets to a third party, finding that plaintiff had sufficiently pled all elements of the claim and that there was insufficient evidence to establish that the claim was preempted by the state Uniform Trade Secrets Act.

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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