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4 E-Discovery Tips from Recent Case Law about New Data Types

September 18, 2023

Eight years on from the last set of major changes to the Federal Rules of Civil Procedure (FRCP) governing e-discovery, you might think that the practice had settled down into a comfortable status quo. That could hardly be farther from the truth. 

Since 2015, data volumes–and data sources–have continued their explosive growth. The total amount of data generated in a year is estimated to have increased eightfold since 2015, and the diversity of channels through which people communicate has increased dramatically as well. Organizations that might have used Word and Excel, email, and phone calls a decade ago now have to deal with texts, Slack and other instant messaging platforms, ephemeral messaging platforms, social media, and more. And all of these platforms are fair game for discovery.

For e-discovery professionals looking to keep on top of their game, they can’t turn to the FRCP to stay up to date. To keep up, they have to learn from case law. Seemingly every week, a significant ruling is handed down that has implications for e-discovery professionals. That's why Exterro started the E-Discovery Case Law Project, which releases a case law alert every two week. 

Over the past several months, Exterro has issued several case law alerts concerning how the courts require litigants to deal with new data types. We've compiled these eight recent entries issued between 2021 and 2023 into a whitepaper you can download--but we'll also present key learnings from these cases in this blog post as well. These rulings offer insight into how the courts are handling cases involving new data types, from Slack and Skype to Discord and WeChat. Dig in to learn valuable lessons without running afoul of the bench.

  • Stay up to date. Make sure you understand what new technology platforms your organization is using, so you can collect from them when needed.

  • Pay attention to settings. Default settings may not work for you. Lack of awareness of auto-delete functions–or failure to reset them appropriately–could land you in hot water.

  • Communication tools aren’t the only data sources. Collaboration software, calendar entries, text messages, and more might be relevant and may need to be preserved.

  • The usual rules of discovery apply. Be specific and accurate in your filings and motions. Cooperate with opposing counsel and the bench. Understand and apply proportionality.

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