Our Insights on eDiscovery

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2012 eDiscovery Year in Review: eDiscovery Case Law, Part 3
 2012 eDiscovery Year in Review: eDiscovery Case Law, Part 3 150 150 CloudNine

As we noted the past two days, eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases! Yesterday, we looked back at cases related to social media and the first cases approving technology assisted review. Today, let’s take a look back at cases related to admissibility and the duty to preserve and produce electronically stored information (ESI).

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2012 eDiscovery Year in Review: eDiscovery Case Law, Part 2
 2012 eDiscovery Year in Review: eDiscovery Case Law, Part 2 150 150 CloudNine

As we noted yesterday, eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases! Yesterday, we looked back at cases related to proportionality and cooperation, privilege and inadvertent disclosures, and eDiscovery cost reimbursement. Today, let’s take a look back at cases related to social media and, of course, technology assisted review(!).

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2012 eDiscovery Year in Review: eDiscovery Case Law, Part 1
 2012 eDiscovery Year in Review: eDiscovery Case Law, Part 1 150 150 CloudNine

2012 was quite a year from an eDiscovery standpoint, with a number of cases that impacted how organizations handle discovery. As we did last year, it seems appropriate to review cases from 2012 before moving forward to this year. eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases! Perhaps you missed some of these? Now is your chance to catch up!

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Court Reduces, But Allows, Reimbursement of eDiscovery Costs – eDiscovery Case Law
 Court Reduces, But Allows, Reimbursement of eDiscovery Costs – eDiscovery Case Law 150 150 CloudNine

In Moore v. The Weinstein Company LLC, noting it had wide discretion to determine costs recoverable by a prevailing party under federal statutes providing for the taxation of costs, a court reduced costs awarded for eDiscovery expenditures based on its analysis of which costs were reasonable, necessary, and taxable.

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Emails Between Husband and Wife Are Not Privileged, If Sent from Work Computer – eDiscovery Case Law
 Emails Between Husband and Wife Are Not Privileged, If Sent from Work Computer – eDiscovery Case Law 150 150 CloudNine

In United States v. Hamilton, the Fourth Circuit found that the district court had not abused its discretion in finding that e-mails between the defendant and his wife did not merit marital privilege protection because the defendant had used his office computer and his work e-mail account to send and receive the communications and because he had not taken steps to protect the e-mails in question, even after his employer instituted a policy permitting inspection of e-mails and he was on notice of the policy.

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Chances Are that Delaware Has Been as Busy as Any State in eDiscovery – eDiscovery Trends
 Chances Are that Delaware Has Been as Busy as Any State in eDiscovery – eDiscovery Trends 150 150 CloudNine

In December of 2011, as previously reported in eDiscoveryDaily, the U.S. District Court for the District of Delaware revised the “Default Standard for Discovery, Including Discovery of Electronically Stored Information (ESI)” to reflect changes in technology and to address concerns of attorneys regarding the discovery of ESI. As of January 1, 2013, more changes are in effect in Delaware.

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$2.9 Billion? Gartner Predicts eDiscovery Software Market to Double by 2017 – eDiscovery Trends
 $2.9 Billion? Gartner Predicts eDiscovery Software Market to Double by 2017 – eDiscovery Trends 150 150 CloudNine

As reported by Evan Koblentz in Law Technology News, electronic data discovery software sales reached $1.4 billion worldwide in 2012 and will reach $2.9 billion by 2017 according to Gartner Inc. Their latest forecast for the eDiscovery industry is discussed in Forecast: Enterprise E-Discovery Software, Worldwide, 2012-2017.

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Defendant Had Duty to Preserve Despite No Physical Possession of Documents – eDiscovery Case Law
 Defendant Had Duty to Preserve Despite No Physical Possession of Documents – eDiscovery Case Law 150 150 CloudNine

In Haskins v. First American Title Insurance Co., a court found that an insurance company had a duty to issue a litigation hold to its independent title agents because litigation was reasonably foreseeable and the duty to preserve extends to third parties, as long as the documents are “within a party’s possession, custody, or control.” Although it did not have physical possession, the insurance company controlled the agents’ documents because it had “‘the legal right or ability to obtain the documents from [the agents] upon demand.’”

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Sanctions for Violating Motion to Compel Production? Not Yet. – eDiscovery Case Law
 Sanctions for Violating Motion to Compel Production? Not Yet. – eDiscovery Case Law 150 150 CloudNine

In Fidelity National Title Insurance Co. v. Captiva Lake Investments, LLC, where a party’s “conduct [did not] rise[ ] to the level of a willful violation of the order compelling production” because it was continually working toward the proper production of documents requested by its adversary, a court concluded that the adversary’s motion for sanctions was premature.

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Problems with Review? It’s Not the End of the World – eDiscovery Best Practices
 Problems with Review? It’s Not the End of the World – eDiscovery Best Practices 150 150 CloudNine

If 2012 will be remembered for anything from an eDiscovery standpoint, it will be remembered for the arrival of Technology Assisted Review (TAR), aka Computer Assisted Review (CAR), as a court accepted method for conducting eDiscovery review. Many associate TAR with predictive coding, but that’s not the only form of TAR to assist with review. How the documents are organized for review can make a big difference in the efficiency of review, not only saving costs, but also improving accuracy by assigning similar documents to the same reviewer.

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