The National Attorneys General Training & Research Institute

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

Electronic Discovery Bulletin November 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.

This article by D4 discusses the issues arising from ESI being transmitted, such as spoliation of the metadata and corruption of the data. It provides a simple guide on how to transfer data correctly.

Another article by D4 emphasizes that documentation is the most important step of any collection. The article then goes on to discuss how to document chain of custody and why it is so important.

This eDisclosure Information Project post covers an interview with Dr. Robert MacFarlane if Hanzo in which he discusses collecting dynamic web content. As the article points out, Hanzo has substantially updated its product line, but the capabilities discussed in the MacFarlane interview remain relevant.

The Association of Certified EDiscovery Specialists (ACEDS) is hosting a webinar on upcoming technology for eDiscovery cases on Tuesday, December 4, 2018 from 1-2 pm ET. Three eDiscovery managers of Fortune 500 companies: Gene McKelvey of Michelin, Christa Haskins of Becton Dickinson and David Yerich of United Health Group will discuss the technology they are following when it comes to automating and streamlining eDiscovery activities. Register here.

Recent Cases to Note

In Swift Beef Co. v. Alex Lee, Inc., the U.S. District Court for the District of Kansas, finding that the information requested by the subpoena had limited relevance and was not proportional to the needs of the case, and that the non-party had established that its production would be unduly burdensome, granted the motion to quash subpoenas and denied the plaintiff’s motion to compel compliance with subpoenas.

In Updateme Inc. v. Axel Springer SE, the U.S. District Court for the Northern District of California ordered the defendants to review a random sample of unreviewed documents in dispute and produce any responsive documents reviewed, along with a privilege log, if applicable, and report on the number of documents and families reviewed and the rate of responsiveness within one week.

In Metlife Investors USA Insurance Co. v. Lindsey, the U.S. District Court for the Northern District of Indiana granted the defendants’ motion to compel the plaintiff to produce all responsive documents in the form in which they are maintained in the usual course of business (i.e., native files with metadata) and also ordered the defendants to file an itemization of costs and fees, including attorney’s fees, incurred in making the motion to compel.

In Decker v. Target Corp., the U.S. District Court for the District of Utah granted in part and denied in part the plaintiffs’ motion for a finding of spoliation and for sanctions, granting the plaintiffs’ request for sanctions for failing to preserve more of the video surveillance footage on the plaintiff’s trip and fall accident, but denying the plaintiffs’ request for sanctions for failing to preserve training records and the store’s safety statistics and records for 2015.

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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