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Over the past few years, there has been a significant increase in the number of tools available to attorneys to analyze and review electronically stored information (“ESI”) that has been collected from clients or produced by opposing parties. While courts and attorneys continue to become

Over the past few years, there has been a significant increase in the number of tools available to attorneys to analyze and review electronically stored information (“ESI”) that has been collected from clients or produced by opposing parties. While courts and attorneys continue to become comfortable with the use of tools like technology-assisted review, email threading, document clustering, and document categorization to facilitate the actual review of documents, there are a host of top-down methods for analyzing the document population as a whole that can provide helpful insight that would be difficult, if not impossible, to obtain through a document-by-document analysis.

On November 10, 2016, Law360 released an article entitled Data Analytics: How Parties Are Using Tools Beyond TAR that outlined a number of case studies where these “big data” tools can directly assist in identifying potential areas of interest or gaps in available ESI.…

Continue Reading Using Metadata Reports and Analytics to Identify Trends in Your Document Population

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At the end of September, the U.S. the U.S. District Court for the District of Kansas held that a warrant for an entire email mailbox did not violate the parameters of the Fourth Amendment in In re Microsoft Corp., 2016 BL 320715, D. Kan., No. 16-MJ-8036, 9/28/16.  Here, the court looked to balance an individual’s right to privacy and the government’s capability to effectively prosecute suspected criminals.…

Continue Reading Fourth Amendment, Stored Communications Act Allow for Collection of Entire Personal Email Account

As part of its Working Group on Electronic Document Retention & Production, the Sedona Conference recently released a “TAR Case Law Primer” that analyzes court decisions that directly or indirectly touch upon issues involving technology-assisted review (“TAR”).

The primer begins with a brief summary of Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012), the first published opinion agreeing that TAR is an “acceptable way to search for relevant ESI in appropriate cases.” Id. at 183. Although this opinion approved the use of TAR in that case under the particular facts and issues before the court, many parties were still unclear regarding the method of implementing TAR, the appropriate level of involvement by opposing parties (if any), and whether an agreement must be reached regarding technical specifics of the TAR process.
Continue Reading Sedona Conference Releases “TAR Case Law Primer”

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In Moore v. Lowe’s Home Centers, LLC, Case No. 14-01459 (W.D. Wash., June 24, 2016), plaintiff Marla Moore brought a Motion for Sanctions for Defendant Lowe’s Home Centers’ willful spoliation of evidence.  In short, Plaintiff claimed she was the target of verbal harassment, a hostile work environment, and was demoted as a result of her pregnancy.  The Plaintiff was ultimately terminated for violation of the Defendant’s photo copying policy.

Plaintiff’s sanctions motion stemmed from Defendant’s deletion of Plaintiff’s email account following her termination.  …
Continue Reading Duty to Preserve Not Triggered by Employee Complaints

In Hyles v. New York City, 10 Civ. 3119 (AT)(AJP) (S.D.N.Y. Aug. 1, 2016), the court addressed the question of whether the City could be “forced” to use technology assisted review (predictive coding) to identify discoverable information when the City itself preferred to use keyword searching. “The short answer [was] a decisive ‘NO.’”

After consulting with an e-discovery vendor, Plaintiff’s counsel in this case “proposed that the City should use TAR as a ‘more cost-effective and efficient method of obtaining ESI from Defendants.’” “The City declined, both because of cost and concerns that the parties, based on their history of scope negotiations, would not be able to collaborate to develop the seed set for a TAR process.”  The issue was referred to U.S. Magistrate Judge Andrew Peck for resolution.
Continue Reading Judge Peck Won’t Force Use of TAR