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3 Lessons from E-Discovery Case Law in June 2023

Created on June 27, 2023

Vice President, E-Discovery

While the explicit rules governing e-discovery haven't changed significantly over the last several years, with the last major update to the Federal Rules of Civil Procedure (FRCP) coming in 2015, the practice of e-discovery is constantly changing. Technology is constantly evolving. Parties to litigation don't just produce email correspondence, Office documents, and PDFs. Social media, ephemeral messaging apps, text messages, health trackers, cell phone geolocation data, and more can serve as relevant evidence in litigation. And that's not even considering the changes in the technologies legal practitioners use to preserve, collect, and... Read More

Forensic Collections for E-Discovery: Key Differences between Logical and Forensic Collections

Created on May 1, 2023

Vice President, E-Discovery

Why Legal Teams Need Multiple Approaches to ESI Collection It’s more important than ever that in-house legal departments ensure that they have the capabilities to preserve data and collect it in a variety of ways from a range of different sources. The factors driving this include both the diversity of data types present in most organizations and the increase in use cases requiring data preservation, collection, and analysis. Regardless of the reason for preserving the data--an internal or criminal investigation, civil litigation, or in response to a data breach--they must use the technology and methodology appropriate to that purpose. In some... Read More

Case Law Alert: Welcome to the “Inner Circle of Judicial Hell”

Created on March 7, 2023

Vice President, E-Discovery

E-Discovery sanctions always draw attention, but in DR Distribs., LLC v. 21 Century Smoking, Inc., the e-discovery mistakes were so profound, and compounded over so much time, that the presiding judge issued seven-figure sanctions against both the defendant and its former counsel. Overview Beginning a decade ago in 2012, this case stems from a trademark infringement suit between two electronic cigarette companies. Plaintiff, who held a trademark for the term “21st Century Smoke,” accused the defendant “21 Century Smoking” of violations of the Lanham Act. At the time of the sanctions... Read More

Be Prepared! Don’t Show Up to Your Rule 26(F) Meet-and-Confer With Nothing But a Boilerplate

Created on February 23, 2023

Vice President, E-Discovery

One of the key themes of successful e-discovery that federal judges have emphasized for years is the importance of preparation and precision both in crafting discovery requests and in objections. The revised Federal Rules of Civil Procedure make it quite clear that you must prepare requests with "reasonable particularity."  Put more simply, you can't fake it. You have to know your stuff. What are you asking for? What are the reasons for your objection? Fortunately, early case assessment technology can help you get a look at the information you need before you even have... Read More

Case Law Alert: Do You Have to Produce Relevant Data from a Third-Party Vendor?

Created on February 21, 2023

Vice President, E-Discovery

As more and more organizations store data, the question asked in the alert’s title will continue to arise in cases again and again. In Linhares v. Woods Hole, Martha’s Vineyard, the court ruled that if a party has the practical ability to produce the requested documents, then they must do so. Overview: In this personal injury “slip and fall” case, the plaintiff motioned to compel the defendants to produce documents that were possessed by a third-party. During e-discovery, the plaintiff wanted to see the history of repairs done to the area in... Read More

Case Law Alert: Deleted Text Messages Don’t Lead to an Adverse Inference Sanction. Here’s Why…

Created on February 10, 2023

Vice President, E-Discovery

The duty to preserve potentially relevant data extends to when “litigation is reasonably foreseeable.” This broad standard, in today’s big data world, can make it complicated for businesses to clearly communicate when litigation is likely and burdensome to implement processes to find and preserve that data, as the case law ruling in EBIN New York, Inc. v. SIC Enterprise, Inc. demonstrates. Overview The defendants moved for spoliation sanctions against the plaintiff, alleging failure to preserve relevant data from sources including WeChat and KakaoTalk mobile messages. The plaintiff filed suit in this trade... Read More

Case Law Alert: TAR: Use it at the Beginning of E-Discovery or Potentially Lose it

Created on January 27, 2023

Vice President, E-Discovery

Both sides must agree to entering into a TAR protocol. In In re Allergan Biocell Textured Breast Implant Products Liability Litigation (D.N.J. Oct. 25, 2022), asking for a change in review methodology in the middle of the review process was unacceptable, since both sides weren’t in agreement. Overview In this case, the defendants proposed to the court to use technology assisted review (TAR) to review and produce documents. The plaintiffs argued against the use of TAR. In defense of using TAR, the defendants argued the following: TAR is “standard practice and commonly... Read More