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

Electronic Discovery Bulletin January 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.

EDiscovery expert Craig Ball has produced a guide to discovery of mobile device content, Mobile to the Mainstream: Preservation and Extraction of IOS Content for E-Discovery. The guide is divided into two sections: Section I addresses preservation of iPhone and iPad content, and Section II covers simple, low-cost approaches to extracting relevant mobile data to a standard eDiscovery workflow. Section II also provides a Mobile Evidence Scorecard to promote consensus as to what forms of mobile content should be routinely collected and reviewed.

EDiscovery provider ComplexD has posted the Winter 2019 EDiscovery Pricing Survey Results, a non-scientific and non-comprehensive survey designed to provide general insight into eDiscovery pricing as shared by individuals working in the eDiscovery field. It is based on a survey conducted during December 2018 and addresses such metrics as the per GB cost to process ESI based on volume, the per GB per month cost to host ESI without analytics and the user license fee per month for access to hosted data.

The Association of Certified E-Discovery Specialists (ACEDS) is offering a free webinar on software for AI Drive Early Case Assessment, to be given on Wednesday, February 27, 2019 at 1 pm ET. It will address software to quickly identify potentially responsive data prior to collection by exposing contextual relationships between custodians and content. Speakers are from eDiscovery provider Exterro. Register here.

This post addresses the Dos & Don'ts of Handling Data Received from Clients and Opposing Counsel. It covers the proper course of action one should take on the receiving end of improperly collected data, as well as how to handle produced data that is not in a readily usable format.

Recent Decisions

In Miller v. Saubermanm, 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.

In Farmers New World Life Insurance Co. v. Jones, the U.S. District Court for the Western District of Oklahoma granted the defendants’ motion to compel against the non-party City of Oklahoma City Police Department to comply with the subpoena of records related to a murder in a civil case with the insurance company.

In Santana v. MKA2 Enterprises, Inc., an employment discrimination case, the U.S. District Court for the District of Kansas denied the defendant’s motion to compel regarding his request for the plaintiff to produce all of his cell phones for inspection and copying; however, the court ordered the plaintiff to produce complete copies of all responsive text messages to the extent they had not already been produced.

In Optolum, Inc. v. Cree, Inc., the U.S. District Court for the Middle District of North Carolina held that the defendant, who had migrated to a new cloud-based archiving system after the suit was filed, was required to restore the original archiving system, but the parties would split the cost as there was undue burden on the producing party.


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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