Tagged: Collection Methods

Ignorance Isn’t Bliss: Federal Sanctions Imposed for Party’s Failure to Timely Search Its Email Server

A recent decision from the Eastern District of Pennsylvania underscores an important lesson on attorneys’ duty of competence, which requires a practical and well-rounded understanding of technology in order to execute their clients’ e-discovery obligations. Indeed, as Ondigo LLC v. intelliARMOR LLC reflects, ignorance of the various sources of e-discovery cannot shield attorneys or parties from sanctions under Federal Rules of Civil Procedure 26(g) or 37(e).

“Is That All There Is?” The Western District of Kentucky Gives a Fresh Look to the Standard Supporting ESI Search Sufficiency Challenges

A long-established precept of ESI production challenges is, if you’re complaining that they “must have more than that,” you’d best be able to support that position if your goal is to force your adversary to redo its search. Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., et al., No. 3:19-CV-00014-GNS-LLK (W.D. Ky. Apr. 20, 2021) brings this point home in full force. In that decision, which involved a Lanham Act trade dress dispute, United States Magistrate Judge Lanny King addressed plaintiff Maker’s Mark’s complaint that defendant Spalding’s ESI production was so paltry and otherwise deficient that Spalding should be compelled to implement a new ESI search. Ultimately, the court was having none of it. This decision is a reminder of the importance of communication between counsel before and after the Rule 26 conference, as well as the need to establish a compelling factual record of discovery deficiencies before seeking judicial relief.

Do Not Treat Rule 26(g) Certifications as a Mere Formality: Southern District of Florida Cautions Against Client ‘Self-Collection’ of ESI Without Adequate Attorney Oversight

In a recent decision reprimanding defense counsel’s lack of oversight of a client’s collection of data during discovery, the District Court for the Southern District of Florida issued a cautionary opinion that should serve as yet another reminder to counsel of the perils associated with allowing a client to self-collect ESI. Similar to a recent decision we addressed from the District Court of the Northern District of California, Equal Employment Opportunity Commission v. M1 5100 Corp., d/b/a Jumbo Supermarket, Inc. is a strong reminder that Federal Rule of Civil Procedure 26 should serve as a guide for the action and oversight required of counsel in the search, collection, and production of documents in response to discovery demands. In this age discrimination case, the District Court addressed plaintiff’s motion to compel. Plaintiff sought more specific discovery responses to two requests, attorney’s fees and costs in addition to the “opportunity to inspect Defendant’s ESI because, by Defendant’s counsel’s own admission, Defendant ‘self-collected’ responsive documents and information to the discovery requests without the oversight of counsel.” Cautioning against the “perils of self-collection of ESI by a party or interested person,” the District Court reminded counsel of its obligation to “have knowledge of, supervise, or counsel the client’s discovery search, collection and production” pursuant to Rule 26(g)(1). The District...

Predictable? — DOJ Approves Use of Predictive Coding in AB InBev-Grupo Modelo Merger Investigation

On May 6, 2013, the U.S. Department of Justice’s (“DOJ”) Antitrust Division approved Constellation Brands Inc.’s (“Constellation”) and Crown Imports LLC’s (“Crown”) request to use predictive coding to determine which documents were most relevant and responsive to the DOJ’s requests. Constellation is a potential buyer of assets from the huge AB InBev-Grupo Modelo merger, and Crown is a joint venture between Grupo Modelo and Constellation. Reportedly, Constellation and Crown identified in excess of one million documents that would require manual review before being handed over to the Justice Department for scrutiny. After several seed sets were run using the automated data review software and compared manually, DOJ was satisfied that the predictive coding software would identify the most relevant documents and approved its use. As reported by the Wall Street Journal, the predictive coding software used by the parties was developed by kCura Corporation, a software vendor for many entities including DOJ.

Show Your Work: Google Ordered to Produce Search Terms and Custodians Used When Responding to Apple’s Subpoena

In a recent order in Apple Inc. v. Samsung Electronics Co. Ltd., et al., United States Magistrate Judge Paul S. Grewal reinforced the importance of cooperation and transparency in the discovery process, especially when it involves electronically stored information. The order granted Apple’s motion to compel Google, a non-party, to produce the search terms and list of custodians Google used when responding to Apple’s subpoena. Judge Grewal’s order is significant because it underscores that a responding party, whether or not a party to the litigation, should be prepared to disclose the methodology it used to identify and collect electronically stored information in response to a discovery request.

Update of Proposed Rule Changes: A Universal Federal Sanctions Standard for the Failure to Preserve ESI Could be a Reality

The United States Courts’ Advisory Committee on Civil Rules (“the Committee”) has proposed various amendments to the Federal Rules of Civil Procedure that, if adopted, will profoundly affect the range and scope of sanctions a court may impose for failures to preserve electronically stored information (“ESI”). F.R.C.P. 37(e), which currently addresses sanctions in those instances, is one of several rules slated for amendment.

An International Standard for E-Discovery?

The International Organization for Standardization (“ISO”) is forming a new e-discovery committee tasked with the development of standards for e-discovery processes and procedures. The international standard “would provide guidance on measures, spanning from initial creation of [electronically stored information] through its final disposition which an organization can undertake to mitigate risk and expense should electronic discovery become an issue” according to a draft committee charter.

“Trust me, I know what I’m doing!” – Court Outlines Perils of Custodian Self-Collection and Inadequate Keyword Searches

In a recent ruling, United States Southern District Judge and e-discovery authority Shira Scheindlin, of Zubulake and Pension Committee fame, held that various government agencies had failed to adequately design searches for responsive electronically-stored information. While the case, National Day Laborer Org. Network et al. v. U.S. Immigration and Customs Enforcement Agency, et al., 2012 U.S. Dist. LEXIS 97863 (S.D.N.Y. July 13, 2012), deals largely with searches in the context of the Freedom of Information Act (“FOIA”), Judge Scheindlin noted “much of the logic behind . . . e-discovery searches is instructive in the FOIA search context because it educates litigants and the courts about the types of searches that are or are not likely to uncover all responsive documents.”

Race to the High Court: Hoosier Racing Seeks High Court Review of Third Circuit’s Slashing of E-Discovery Cost Award

The skyrocketing costs of e-discovery in modern day litigation will now be getting at least some attention from the nation’s highest court. Not long ago we reported on a decision by the Third Circuit Court of Appeals to slash recovery of costs by a prevailing party under 28 U.S.C. §1920 in Race Tires America, Inc., et al. v. Hoosier Racing Tire Corporation et al., No. 11-2316 (3d Cir. Mar. 16, 2012). In Race Tires, the Third Circuit, while acknowledging a spilt in the circuits, held that costs sought and awarded under §1920 must bear a reasonable connection to duplication of materials in the traditional sense to be recoverable by a prevailing party. Thus, certain e-discovery vendor activities — including conversion of the native files to TIFF images, the scanning of documents for the purpose of creating digital duplicates and the copying of the videos to DVD — could be reimbursed under the statute, while others, like consultant’s charges for data collection, preservation, searching, culling, conversion, and production, could not.

Not So Fast: Race Tires Court Gives a Flat to Momentum for Broad ESI Cost Shifting Under 28 U.S.C. §1920

A Third Circuit Court of Appeals panel, including the Hon. Thomas I. Vanaskie, one of the leading judicial authorities in e-discovery, has spoken — e-discovery-related cost recovery pursuant to 28 U.S.C. §1920 has limits; the costs must bear a reasonable connection to duplication of materials in the traditional sense to be recoverable by a prevailing party. As the first United States Court of Appeals decision to directly address this closely watched issue, this opinion may disarm a potentially powerful weapon in the already limited arsenal of parties burdened with excessive e-discovery costs.