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The Year in Review: 2013 Trends in Plaintiff Electronic Discovery

Posted on January 22nd, 2014

Our Plaintiff eDiscovery Experts Highlight Notable Case Law

As our website continues to highlight the latest plaintiff eDiscovery cases and topics, certain trends emerge that are exceptionally notable for practitioners. Please review with us some of the electronic discovery blog highlights from 2013!

Bar is Raised for eDiscovery Attorney Competence

With the significance of electronic information permeating litigation, both the judiciary and state bar associations continue to expand technical expectations for attorneys. Not only must lawyers be able to understand the types of electronic data available in discovery, they also must be capable of advising clients competently when managing potentially relevant electronic information. Attorneys can no longer plead technological ignorance and stay in the good graces of the courts.

Plaintiff Attorneys Need to Maintain Technology Competence

Attorney Sanctions When Instructions to Client Include Removal of Incriminating Electronic Data

Collaboration Between Attorneys Common And Not Unlawful Practice Of Law

Federal Circuit Reviews Costs for Electronic Discovery Services

Spoliation of Electronic Evidence Case Trends

Spoliation of electronic data and resulting sanctions remain a key source of opinions in 2013. Courts have little patience for parties and counsel who attempt to hide or destroy relevant electronic data resources, whether from traditional email accounts, computer hard drives or social media. ESI parameters should be routinely set during Fed.R.Civ.Pro. 26(f) meetings, where parties are expected to work together and agree on the type of metadata and file formats for production. When plaintiffs’ counsel documents spoliation of relevant discovery evidence, the courts are assessing sanctions with greater regularity.

Spoliation Sanctions for ESI Negligence

Timely Litigation Holds and ESI Requests Lead to Defendant Sanctions When Data Is Lost

Court Recognizes Duty to Preserve Evidence Once Litigation Is Reasonably Foreseeable

Willful Failure to Preserve Evidence Produces Sanctions, No Burden On Innocent Party To Demonstrate Prejudice

Insufficient ESI Production Without Bad Faith Only Extends Deadlines And Requires Production With Metadata

Sanctions Withheld For One Last Chance To Produce

A Review of eDiscovery Trends in the First Half Of 2013

General ESI Production Case Trends

In addition to spoliation, general ESI production opinions are focusing on the parameters of electronic discovery. Arguments over access to particular forms of electronic information are common, especially in regards to social media, and parties often fight over production costs.

No Presumption for Social Media Access in ESI Production

Underlying Raw Data Must Be Disclosed In Studies

Cost-Shifting Expenses Not Reasonable If Data Is In An Accessible Format

International Data Collection Is Not Overly Burdensome When Not Duplicative

When Social Media Is Relevant, Account Access Is Required By Court

Explanation To The Court Allows Plaintiffs To Use Creative Search Solution To Large Scale Document Production

ESI Production Is Severely Lacking; Sanctions Include Attorneys’ Fees, Costs and Addition Discovery Time

Electronic Discovery Experts Exclusively Supporting the Plaintiffs’ Bar

For the latest up-to-date case law about electronically stored information that affects trial attorneys and the clients they serve, be sure to visit and bookmark our plaintiffs’ blog.

Contact our team of like-minded experts to learn more about our plaintiff electronic discovery services, including but not limited to expert computer forensics, eDiscovery software, issue coding, document review and international language services.

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