eDiscovery Navigator

Client-Driven Innovation Delivers Efficient, Cost-Effective E-Discovery Process
by Kiersted Systems

Naturally, the courts are focused more on legal and procedural matters than on technical processes, and clients often tell us about the challenges they face in communicating their need for reasonable discovery expectations and timeframes. Notwithstanding today’s challenges, and perhaps a less-than-optimal understanding of the technical issues, courts have always run under tight schedules and simply have to set aggressive deadlines.

Again, our job is to help. For example, with tools like Kiersted Direct, clients can perform a quick analysis and gain early-stage insight into the data parameters of their matters, at which point they can communicate intelligently with the court and make concrete and reasonable suggestions. The value of such capabilities is borne out in feedback from government enforcement agencies that support the idea of educating the courts on technical issues and, in the process, saving time and money.

Significant Trends: Insights Of Technology Counsel On E-Discovery Trends
by MetLife & Exterro Inc.

Recent case law indicates it’s not enough to just issue the legal hold and think you’ve complied with your preservation obligation. Follow-up after the hold is issued is equally important. If you’re not affirmatively re-issuing holds, monitoring custodian compliance, conducting interviews and collecting  ESI based on their responses to the legal hold notice, then you haven’t really fully complied with your organization’s legal hold obligation.

Delaware Court Of Chancery Announces Rule Changes And New Discovery Guidelines
by Delaware Court of Chancery

The Court of Chancery amended its Rules regarding discovery, effective January 1, 2013.  Rules 26, 30, 34 and 45 were updated to account for modern discovery demands and will bring the Court’s rules in line with current practice. The amendments refer to discovery of “electronically stored information” (“ESI”) in addition to “documents” and “tangible things,” and explain how parties should respond to requests for ESI. These changes are consistent with similar amendments to the Federal Rules of Civil Procedure. Rule 26(c) also was revised to make clear that an out-of-state non-party from whom discovery is sought may move for a protective order in this state. 

New York Courts Address Electronic Discovery Of Social Media Data
by Kramer Levin Naftalis & Frankel LLP

Litigants defending against personal injury and similar claims increasingly look to information stored on social media sites (“SMS”), which often memorializes the thoughts, feelings, and activities that are relevant to damages claimed by an injured party. Over the past year, New York State courts have issued no fewer than nine decisions concerning the discoverability of SMS data in the context of motions to compel authorized access or the turnover of account passwords. Although personal injury litigation is the primary driver of the development of SMS jurisprudence in New York, the subject also has made an appearance in a few federal cases dealing with employment discrimination claims. Because decisions compelling the production of SMS data are becoming more frequent and prominent, litigants should expect to make and receive discovery requests for SMS information with increasing regularity. E-discovery from SMS sources requires careful planning, due to the balancing act between privacy, undue burden, and the right of discovery.

International Standard Project for E-Discovery Approved
by Steven Teppler, Law Technology News

A technical committee of the International Organization for Standardization, ISO/IEC JTC 1/SC 27, gave final approval for the development of an international standard for the discovery of electronically stored information at its meeting last week hosted by the European Telecommunications Standards Institute in Sophia Antipolis, France.1 ISO standards are widely adopted and in some countries have the force and effect of law or provide substantive legal precedent.

The official document title for the standard is ISO/IEC 27050, Information Technology — Security techniques — Electronic discovery. U.S. participation in this project will be managed by the International Committee for Information Technology Standards Technical Committee, CS1 Cyber Security, specifically the CS1 Storage and Evidence Ad Hoc Committee. Project Editor Eric Hibbard, CTO Security and Privacy at Hitachi Data Systems, and Co-Editor Angus Marshall, principal scientist, n-gate ltd., and the ISO/IEC JTC 1/SC 27 Working Group 4, which develops standards for security controls and services, will manage the project.

April Edition of Notable Cases and Events in E-Discovery
by Sidley Austin LLP

This update addresses the following recent developments and court decisions involving e-discovery issues:

1. A District of Kansas decision finding that Kansas does not recognize an independent tort for intentional spoliation of evidence, absent an independent duty to preserve evidence arising from a contract, voluntary assumption of duty, or some special relationship;

2. A District of Maryland decision holding plaintiff and its counsel jointly and severally liable for defendant’s fees and costs for making an inaccurate discovery certification under Fed. R. Civ. P. 26(g) and for failing to provide responsive electronically stored information (“ESI”) in an appropriate format for production; and

3. A Northern District of California case deciding that information regarding emails containing certain search terms, as well as email subject lines, are protected “content” under the Stored Communications Act and not subject to production by email providers.

Beyond Cost Savings: How Advanced Analytics in E-Discovery May Be Pivotal To Successful Case Outcomes
by Dean Kuhlmann, Xerox Litigation Services

While the term “Big Data” has had a lot of buzz lately, the concept itself, along with many of its challenges – that is, how to extract value from data to meet various business or legal purposes  – has been in existence for many years. We’ve long had too much data – it’s the context and the volume that have changed. When everything was on paper, we read every document, but as the volume and data types demanded by discovery have been brought to a new level, we have had to figure out ways to accomplish the task without physically setting eyes on every document. Over time, clients have become more and more willing to accept and trust technological approaches that aid in finding and assessing information. This is where our advanced analytical tools come into play. Clients have multiple tools at their fingertips, and we help them to understand which are appropriate to apply and when.

Cope With Complex Asian Issues Affecting E-Discovery By Using A Full-Service Provider
by John Bace, UBIC North America, Inc.

A growing number of companies have multiple matters in multiple jurisdictions. Instead of trying to have each and every law firm retained by them keep a company’s information in its own unique database, many companies keep all the material for discovery in a single repository utilized by all their law firms. This not only helps reduce cost, but it also helps both the client and the law firms know what information needs to be handled in a particular way, for example, what’s being marked as privileged.

Because of privacy laws and security-type issues, we see a growing number of companies wanting to keep their data in the country where their headquarters are located. UBIC, for example, has centers that are located here in the United States, Japan, Korea and Taiwan. This permits clients located in those countries to keep their data in their own country. Many companies based in other countries feel that the U.S. has the worst privacy laws in the world. For instance, national security letters, issued by the FBI, require the employees of companies not to disclose certain information -- and individuals who violate an NSL can go to jail.