Exterro's E-Discovery & Privacy Breakdown // Mike Hamilton

The world of E-Discovery & Privacy is constantly changing – let us break it down for you with a weekly dose of News, Resources, Case Law, and Humor, all written in a concise and easy to understand format.

Case Law Alert: Lost, Fabricated Text Messages Lead to Sanctions

Created on January 28, 2022


Vice President, E-Discovery

As custodians have more access to applications that can alter data, the risks around the authenticity of evidence heighten. Gunter v. Alutiiq Advanced Security Solutions, LLC showcases those risks and required the court to identify an appropriate remedy based on questionable evidence produced by one of the litigating parties. Overview In this “whistleblower” discrimination case against the plaintiff’s employer, the defendant alleged that the plaintiff “fabricated certain electronic evidence produced in discovery, and withheld or spoliated other electronic evidence during the discovery process.” Based on this allegation, the defendant sought a case... Read More

Case Law Alert: Amazon Avoids E-Discovery Spoliation Sanctions By Producing Alternative Data

Created on January 14, 2022


Vice President, E-Discovery

Via Vadis, LLC v. Amazon.com, Inc. reiterates the fact that the burden to succeed on spoliation sanctions under FRCP 37(e) is very high. Courts will refer to the business judgment rule if the party accused of spoliating evidence did not act with any bad intent and if the requesting party was not prejudiced. Here the court found that sanctions were not warranted because the data deletion resulted from ordinary and reasonable business processes, any deletion of responsive data was inadvertent, and the deleted data was replaced with other data providing similar... Read More

Case Law Alert: Can’t Decide on Search Terms in Discovery? Find an Expert

Created on December 24, 2021


Vice President, E-Discovery

As more data is created and stored—and thus eligible for discovery—search techniques have become a breeding ground for disputes on which parameters best identify relevant information. McMaster v. Kohl’s Department Stores, Inc. furthers that conversation and emphasizes the need for cooperation and the importance of leveraging third-party experts to identify appropriate solutions. Overview In this ADA case, the plaintiff motioned to compel discovery, but the two parties could not agree on the search terms the defendant would apply to the data collected during e-discovery. The discovery dispute related to whether a... Read More

Case Law Alert: Court OK’s Discovery on Discovery in Limited Situations

Created on December 10, 2021


Vice President, E-Discovery

With the increased focus and attention to proportionality, courts rarely permit parties to indulge in “discovery on discovery.” However, there are exceptions. America West Bank Members v. State of Utah (D. Utah, Nov. 10, 2021) showcases when the court views discovery on discovery as warranted. Overview In this violation of due process case, the plaintiff sought to compel additional discovery (i.e., “discovery on discovery”) after alleging that the defendants deleted or lost responsive documents throughout the discovery process. The plaintiff requested the following in its motion to compel: "Discovery on discovery" to... Read More

Case Law Alert: Inadequate Searches for Responsive Data Lead to Sanctions

Created on November 19, 2021


Vice President, E-Discovery

Under the FRCP, a party has the duty to conduct a reasonable inquiry to find responsive data in e-discovery. If you fail to take this duty seriously, as happened in Axis Ins. Co. v. American Specialty Ins. & Risk Servs., Inc. (N.D. Ind. July 12, 2021) the court will ask you to go back and do it again, and you may be forced to pay opposing party costs in seeking compliance. Overview In this breach of contract case, the plaintiff moved to compel document and metadata production based on irregularities and inconsistencies... Read More

Case Law Alert: Court Requires Party to Produce Legal Hold Notices

Created on November 5, 2021


Vice President, E-Discovery

Radiation Oncology Servs. Of Cent. New York, P.C. v. Our Lady of Lourdes Memorial Hosp., Inc. (N.Y. Sup. Ct., Cortland Co., June 9, 2020) showcases the importance of having a defined, repeatable preservation process and specifically highlights how legal teams must focus on creating a defensible legal hold notice. Overview In this breach of contract case, the plaintiffs requested the court require the defendants to produce their legal hold notices and related data, based upon the plaintiffs’ allegations of spoliation. In discovery, there was a discrepancy between the physical documents and... Read More

Case Law Alert: Phased E-Discovery Approach Endorsed by the Court

Created on October 22, 2021


Vice President, E-Discovery

As the amount of data that organizations create and store continues to grow, it’s imperative that legal teams align their e-discovery techniques with the principle of proportionality. As seen in Huntsman v. Southwest Airlines Co., 2021 WL 3504154 (N.D. Cal. August 10, 2021), using a phased discovery approach is not only proportional, but also fits with the court rules for conducting a “reasonable inquiry.” Overview In this class action lawsuit based on the violation of the Uniformed Services Employment and Reemployment Rights Act of 1994, the parties had numerous e-discovery disputes... Read More