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Electronic Discovery Bulletin July 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 GDPR poses significant new risks in copying, using and transferring European Union-based data in U.S. cases due to the expansive definition of “personal” data that makes it almost inevitable that the GDPR will apply. The attached article from the Association of Certified EDiscovery Specialists (ACEDS) on eDiscovery Strategies to Reduce GDPR Risk discusses the key GDPR provisions that relate to U.S. discovery and then presents five strategies to reduce risk.

EDiscovery provider CloudNine is offering a free webinar addressing court decisions on eDiscovery issued during the first half of 2018 on July 25, 2018 at 1 pm ET. Key questions to be addressed include: 1) whether an individual can be compelled to produce private Facebook photos; 2) how proportionality considerations have affected scope of discovery; 3) whether a receiving party should be granted a quick peek at privileged documents to resolve disputes; and 4) whether a party can be sanctioned for discovery violations after a jury verdict. Register here.

The Sedona Conference Working Group 1 on Electronic Document Retention & Production published the public comment version of their Primer on Social Media, Second Edition. Since the publication of the first edition of the Primer, there has been a proliferation of new technologies and business applications, so an updated version was deemed necessary. It may be accessed at https://thessdonaconference.org/publications.

This post on CloudNine’s blog discusses the three different types of cloud services infrastructure: infrastructure as a service (IaaS); platform as a service (PaaS); and software as a service (SaaS). It includes a diagram of the different services, as well as a diagram of the different components of each service.

Another free webinar presented by ACEDS addresses EMR (electronic medical record) Access Reports and their preparation in litigation, to be given on Wednesday, July 26, 2018 at 1 pm ET. The speaker is Tiffany McLauchlin, Privacy Monitoring/eDiscovery Solution Specialist at Maize Analytics. Register here.

Recent Noteworthy Cases

In Motorola Solutions, Inc. v. Hytera Communications Corp., the U.S. District Court for the Northern District of Illinois denied the plaintiff’s motion for a forensic inspection, finding that the plaintiff had been given more than a reasonable opportunity to investigate the relevant facts with eight months of discovery.

In American Municipal Power, Inc. v. Voith Hydro, Inc., the U.S. District Court for the Southern District of Ohio, ruling on the parties’ arguments from a discovery conference, concluded that the search terms proposed by both parties were overly inclusive.

In Singer Oil Company, LLC v. Newfield Exploration Mid-Continent, Inc., the U.S. District Court for the Western District of Oklahoma ruled that the plaintiff did not violate federal rules by disclosing the communications its counsel had with third parties, but found the defendant’s proposed sanction not warranted and limited it to require the plaintiff to pay the attorneys’ fees defendant incurred in filing the motion for sanctions and its reply.

In Mitchell v. Savannah Airport Commission, the U.S. District Court for the Southern District of Georgia granted defendant’s motion to compel, finding that the plaintiff failed to request more time to accommodate the “apparently Herculean” task of reviewing everything defendant produced in response to her requests for discovery, noting that a “temporal quagmire” of plaintiff’s own design is not “good cause” warranting opening discovery under the Rules.

In Ortiz v. Amazon.com LLC, the U.S. District Court for the Northern District of California, finding that plaintiff had failed to provide court-ordered cell phone records because the account was in the name of his wife who refused to consent. ordered the plaintiff to give the defendant his cell phone account holder’s name and address to allow defendant to subpoena the records.

In Webastro Thermo & Comfort North America, Inc. v. Bestop, Inc., the U.S. District Court for the Eastern District of Michigan found the majority of defendant’s search terms to be overly broad and ordered the parties to meet and confer in a good faith effort to focus and narrow defendant’s search terms, so that plaintiff’s production of ESI would remain relevant and exclude ESI that would have no relationship to the case.


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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