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 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.

The Sedona Conference Working Group 1 on Electronic Document Retention & Production announced the publication of its Commentary on Legal Holds: Second Edition: The Trigger & The Process. The first edition of the commentary was published in September 2010, so the new edition reflects the 2015 amendments and developments in state and federal law on preservation and spoliation. The new edition also clarifies the duty of a non-party to respond to a subpoena, provides new guidance on how organizations should address data protection laws and regulations and includes advances in electronic document management technology.

This article by Peter Murphy, a contributing editor to Litigation News, discusses a case is which privilege was found to be waived for an email copied to an unrepresented third party. The case discussed is The Regents of the University of California v. Affymetrix, Inc. in the U.S. District Court for the Southern District of California.

The Association of Certified EDiscovery Professionals (ACEDS) is hosting a 2018 Year in Review webinar on Tuesday, December 18, 2018 at 1 pm ET. XDD Chief Legal Officer Kate Mortenson will discuss GPDR, the Privacy Shield and other data privacy developments; XDD RVP of Forensic Services Scott Polus will discuss the challenges of mobile and social sources and ephemeral messaging; and XDD Director of Education Matthew Verga will discuss new cases on proportionality, spoliation and TAR. Register here.

This blog article discusses employee use of personal technology at work and what data might be discoverable. The article also cites a case from the U.S. District Court for the Middle District of Florida addressing social media posts.

An article by Michael Lowery discusses the issue of who can testify about video evidence, finding there is at least an argument that lay witnesses may not interpret the facts on a video unless they first demonstrate personal knowledge of the events the video depicts.

Recent Court Decisions to Note

In Experience Hendrix, LLC v. Pitsicalis, the U.S. District Court for the Southern District of New York granted the plaintiffs’ motion for an adverse inference instruction against those defendants associated with a particular entity, and directed those defendants to pay the reasonable fees and costs incurred by the plaintiffs in bringing the motion.

In Dunne v. Resource Converting, LLC, the U.S. District Court for the Eastern District of Missouri granted the plaintiff’s motion to compel, ordering the defendants to “resubmit to plaintiff the subject low-quality documents in a non-blurry, legible form digitally accessible to plaintiff, and with the same bates stamp numbers as the original production.”

In U.S. v. Leyva, the U.S. District Court for the Eastern District of Michigan denied the defendant’s motion for a new trial, citing the good faith exception, where law enforcement acts in good faith in obtaining evidence that is ultimately found to have been obtained in violation of an individual’s constitutional rights.

In Miller v. Saubermann, a New York Supreme Court, despite the defendant’s estimated cost of $250,000 to produce metadata related to the plaintiff’s medical records, denied the defendant’s motion for a protective order and granted the plaintiff’s cross-motion to compel the production of that metadata within 30 days of the decision and order.

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

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