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.

Guidance from the Court: How to Adequately Preserve, Search, Collect Potentially Relevant ESI

Created on December 15, 2011


Director of Marketing at Exterro

Five years after the 2006 FRCP changes, the e-discovery world is still awaiting a concrete answer on when and how to defensibly preserve potentially relevant electronically stored information (ESI). E-discovery blogs, magazines and websites have all debated whether the FRCP should be modified to clarify when the duty to preserve is triggered and what really constitutes a reasonable preservation process. However without these changes, people should look for guidance from the courts to help answer their outstanding preservation questions/concerns. In Naaco Materials Handling Group, Inc. v. Lilly Co. (W.D. Tenn. Nov. 2011)... Read More

Litigants Beware: Create Reasonable Document Requests or Else You Might Be Paying for it in the Future

Created on December 8, 2011


Director of Marketing at Exterro

In legal discovery, document requests have been used as a weapon to drive up costs and/or prevent parties from pursuing further litigation. Fortunately, the ruling in Race Tires II, which awarded e-discovery costs for the prevailing party, has sent the message that those who practice such an approach are to be punished by the courts.Under FRCP 54(d)(1), “costs – other than attorney's fees – should be allowed to the prevailing party." To break down this rule: Costs = “the fees for exemplification and the costs of making copies of any materials where... Read More

How Early is Too Early to Serve Subpoenas for E-Discovery to Third Party Service Providers?

Created on December 1, 2011


Director of Marketing at Exterro

In today's digital age, text messages, cell phones and email are the primary form of an average person's daily communications. Often then during tort cases, such as personal injury or wrongful action claims, these type of communication records can be vital for a party to prove or defend against liability. To safeguard and protect against the destruction of evidence, parties must take measures to ensure that potentially relevant records, including those generated on electronic communication services providers, are preserved. Questions have arisen before the courts as to when parties can serve subpoenas... Read More

Production of Social Media: Privacy and Targeted Production Requests

Created on November 10, 2011


Director of Marketing at Exterro

Over the past couple years, the murky waters surrounding the discoverability of electronically stored information (ESI) created on social media sites, such as Facebook, MySpace and Twitter, have somewhat cleared. The current climate typically allows parties to seek production of evidence, including ESI created in social media, which is necessary in the defense or prosecution of a lawsuit. But what does all “necessary" evidence actually mean? Does it apply to social media information that is set as private? Are there limits on how much social media information can be requested? On October... Read More

Be Cautious When Trying to Apply a Proportionality Test to Nullify Preservation Requests

Created on October 27, 2011


Director of Marketing at Exterro

Most attorneys know that a proportionality test (cost-benefit analysis) will be applied when judging the fairness of a production request. But does this test apply to preservation requests too? In Pippins v. KPMG LLP, No. 11 Civ. 0377 (S.D.N.Y. Oct. 7, 2011), the court ruled that the answer is no. In this case, cost shifting or a limitation of the scope of the preservation request could not be applied.In Pippins, the defendants, KPMG, motioned for a protective order to limit the scope of the preservation request or shift preservation costs to the... Read More

The Challenge Continues: Protecting Privileged Information

Created on October 21, 2011


Director of Marketing at Exterro

A frequent theme of e-discovery case law in 2011 is protecting attorney-client privilege in the e-discovery realm. Primarily due to mistakes and ignorance in dealing with electronically stored information (ESI), parties have inadvertently produced and subsequently waived their attorney-client privilege, disclosing to opposing counsel valuable private information. Not only does this impact case outcomes, but it can also bring about negative publicity and adversely affect brand reputation for the law firms and corporate clients they represent. Case in point: MSP Real Estate, Inc. v. City of New Berlin (E.D. Wis. July 22... Read More

Resources to Learn E-Discovery in a Straightforward and Simple Manner

Created on July 28, 2011


Director of Marketing at Exterro

Every now and again as I read through blog, magazine, and vendor articles I come across an e-discovery news source that offers unique, easy to comprehend, and useful content. Since mid May, I really haven't found a better e-discovery educational source than the E-Discovery Basics series, published by the national law firm, Gibson Dunn. For the past three months Gibson Dunn has showcased its expertise and superb writing skill in this informative set of articles on how e-discovery impacts both the legal and IT world.Gibson Dunn's latest publication, 2011 Mid-Year E-Discovery Update... Read More