The National Attorneys General Training & Research Institute

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

Electronic Discovery Bulletin February 2019

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.

EDRM released its final TAR Guidelines, with more than 50 volunteer judges, practitioners and eDiscovery experts contributing to the drafting process over a two year period. The document contains four chapters: the first chapter defines TAR and the TAR process; the second chapter lays out a standard workflow for the TAR process; the third chapter examines alternative tasks for applying TAR, including prioritization, categorization, privilege review and quality and quantity control; and the fourth chapter discusses factors to consider when deciding to use TAR, such as document cost, timing and jurisdiction.

This ABA article by Amy Mattson discusses a case in the U.S. District Court for the Northern District of Illinois where failure of a party to list a document on their privilege log resulted in a waiver of privilege. The defendants in the case had claimed the common interest exception, which allows parties to share privileged communications with a third party without waiver when the parties have a common legal interest, but the court determined there could be no shared interest in this case, and thus any attorney-client privilege that might have attached was deemed waived.

The Sedona Conference and its Working Group on Electronic Document Retention & Production published the second edition of The Sedona Conference Primer on Social Media. The new edition addresses the new messaging technologies and business applications that have emerged since the first edition was published in 2012, and it also considers the evolution of “traditional” social media platforms. The primer can be downloaded here.

Recent Decisions of Interest

In Fair v. Communications Unlimited Inc., the U.S. District Court for the Eastern District of Missouri denied a motion to quash discovery filed by a non-party, finding that the plaintiff had demonstrated she had been unable to obtain the information from the defendants; that her request was not overbroad or unduly burdensome; that the information requested would not disclose personally identifiable information; and that any sensitive or confidential information could be protected with redactions or a protective order.

In Stovall v. Brykan Legends, LLC, the U.S. District Court for the District of Kansas denied the plaintiff’s motion for sanctions based on the defendant’s alleged spoliation of a surveillance video showing an altercation between the plaintiff and her supervisor, finding that the plaintiff failed to meet the requirements of FRCP 37(e)(2).

In Vasquez-Santos v. Mathew, a New York Supreme Court Appellate Division unanimously reversed an order that had denied the defendant’s motion to compel access by a third party data mining company to the plaintiff’s devices, email accounts and social media accounts in order to obtain photographs and other evidence of the plaintiff engaging in physical activities.

In DR Distributors, LLC v. 21 Century Smoking, Inc., the U.S. District Court for the Northern District of Illinois denied the defendants’ motion for leave to amend their counterclaim to remove their own defamation counterclaim, a motion to which the plaintiffs objected because it could eliminate their chance to pursue sanctions against the defendants for spoliation.

In RightCHOICE Managed Care, Inc. v. Hospital Partners, Inc., the U.S. District Court for the Western District of Missouri ordered the defendants to supplement their initial disclosures to comply with Rule 26(a), and either respond to the plaintiffs’ interrogatories and requests for production in good faith or specifically tailor their objections to each question or request, in addition to requiring each defendant to prepare a statement identifying the steps taken to preserve discoverable information.


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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