The National Attorneys General Training & Research Institute

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

Electronic Discovery Bulletin September 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.

Not to be missed is eDiscovery expert Craig Ball’s new posting on Drafting Digital Forensic Examination Protocols. Note this excerpt: "Crafting a forensic examination protocol demands more than finding a good form to filch. It requires a clear sense of what you seek to accomplish through an examination and the ability to express those goals with enough technical specificity to guide a diligent examiner to the artifacts that will answer your questions. There's often a tension between one side's wish to rein the examiner in and the others' to turn the examiner loose. A good protocol balances the two and affords the examiner just enough discretion to follow the electronic evidence and let it tell its tale."

The ABA Litigation News featured an article on guidance for privilege analysis written by Josephine Bahn of the FDIC. It focuses on the Sodexomagic, LLC v. Drexel University case in the U.S. District Court for the Eastern District of Pennsylvania.

An article by eDiscovery provider D4 outlines the key elements and platforms that should be included when creating a data map. The article also includes links to additional articles for more intensive coverage.

EDiscovery provider CloudNine is hosting a free webinar on Preparing for Litigation Before It Happens on Wednesday, September 26, 2018 at 1 pm ET. Topics include recommendations for implementing an information governance program, basic information governance solutions and information governance vs. analytics. Register here.

Another must-read is an article on SaaS (software as a service) data in civil litigation by eDiscovery provider Percipient. Percipient makes the point that courts expect attorneys to understand the software used by their clients. It also notes that extra steps may be needed to preserve information in SaaS applications, and information from SaaS applications not ordinarily accessed by users may have to be produced.

Recent Court Decisions

In Lawrence v. City of New York, the U.S. District Court for the Southern District of New York granted the City’s motion to dismiss, finding that the metadata showed that plaintiff created the photographs two years after the alleged incident to bolster her claims, and then falsely testified about them.

In City of Rockford v. Mallinckrodt ARD Inc., the U.S. District Court for the Northern District of Illinois adopted the parties’ proposed order establishing the production protocol for ESI, including the plaintiffs’ proposal that a random sample of the null set will be taken after the production and that any responsive documents found as a result of that process will be produced.

In Baker v. Santa Clara University, the U.S. District Court for the Northern District of California denied without prejudice the plaintiff’s request for an order compelling the entire production of ESI in native format, finding that the plaintiff did not have a compelling reason other than simply because “she might find something missing.”

In Halleen v. Belk, Inc., the U.S. District Court for the Eastern District of Texas ruled that the defendant had waived its objections to the plaintiffs’ RFPs and interrogatories by including “subject to” boilerplate language in its responses.

In Gould v. Farmers Insurance Exchange, the U.S. District Court for the Eastern District of Missouri granted the plaintiff’s motion to compel two non-party Farmers Insurance agents to comply with subpoenas and produce documents pertaining to text messages that they allegedly sent to potential customers, rejecting their argument that compliance would violate their Fifth Amendment right against compelled, self-incriminating testimony.

In Hernandez v. City of Houston, the U.S. District Court for the Southern District of Texas, finding that the defendant intentionally destroyed evidence by wiping the hard drives of several custodians no longer employed by the City, determined that an adverse inference finding against the defendant was appropriate.


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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