Exterro's E-Discovery Breakdown

The world of E-Discovery 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.

Patent Litigation Brings Unique E-Discovery Challenges

Created on December 6, 2011

With his recently issued Model Order,  Federal Chief Judge Randall Rader has set off a firestorm of talk surrounding e-discovery rule changes and efforts by the courts to minimize the costs and burdens of e-discovery. Judge Rader's proposals also highlight some of the specific challenges associated with conducting e-discovery in patent litigation. Here are some general characteristics of patent litigation and why they present unique e-discovery hurdles:Large Volumes of ESI: Patent cases usually involve large volumes of electronically stored information (ESI).  For starters, the process of obtaining a patent requires companies to produce and... 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 Programs 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

Judicial Embrace of Proportionality Paves the Way for More Targeted Collections

Created on November 29, 2011

Proportionality is certainly not a new concept in e-discovery.  If you aren't familiar with the proportionality rule, it essentially dictates that the value of requested electronically stored information (ESI) must be proportionate to the resources required for retrieving it (FRCP Rule 26(b)(2)(C)).  Interestingly, judges appear to be embracing proportionality – or at least discussing it - more now than ever before.  It was among the hot topics with judges, lawyers and e-discovery experts at the Georgetown Law Advanced eDiscovery Institute earlier this month. What accounts for all the recent proportionality chatter?It is now... Read More

Rise in Regulatory Investigations Makes E-Discovery Preparedness Imperative

Created on November 15, 2011

E-discovery trends are usually discussed in the context of civil litigation. But for many companies, the reality is that regulatory investigations now make up a growing share of e-discovery demands.  According to Fulbright's recently published Litigation Trends Survey, over the past three years: 37% of all companies surveyed reported an increase in external regulatory inquiries More than one-third of respondents reported spending more time addressing regulatory investigative requests or regulatory enforcement proceedings Highly regulated industries, such as healthcare, energy, and finance are especially vulnerable to these regulatory demands. Mark Surguy, partner at... Read More

Production of Social Media: Privacy and Targeted Production Requests

Created on November 10, 2011

Director of Marketing Programs 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 Programs 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 Programs 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