With the ever increasing role and importance of eDiscovery in modern litigation, Plaintiff trial attorneys must be diligent and stay abreast of the latest case law. Due diligence in this area extends past a lawyer’s particular jurisdiction as many plaintiff electronic discovery cases are issues of first impression depending on jurisdiction. Even if certain eDiscovery issues have been previously ruled upon, the nuances of every situation may still mold the ever-emerging case law.
2013 is only about half over yet we have already seen certain trends emerge:
Clawback orders lessen the impact of inadvertent privilege disclosure.
See, e.g., Dornouch Holdings International, LLC v. Conagra Foods Lamb Weston, Inc. (2013 WL 2384235 (D. Idaho))(Appointed special master recommends clawback order); W Holding Company, Inc. v. Chartis Insurance Company of Puerto Rico, 2013 WL 135262 (D. Puerto Rico)(clawback orders to ease the worries of the parties of privilege data disclosure); In re Coventry Healthcare, Inc. ERISA Litigation (2013 WL 1187909 (D.Md.)(Court orders clawback to ease concerns of defendants, who were then unable to establish undue burden).
Relevancy as the “lynchpin” element for spoliation sanctions requests.
See, e.g, Research Foundation of State University of New York v. Nektar Therapeutics, No. 1:09 cv 1292 (2013 WL 2145652)(defendant failed to show relevancy of alleged destroyed evidence, and therefore no ruling of spoliation); Cottle-Banks v. Cox Communications, 2013 WL 2244333 (S.D.Cal 2013)(plaintiff failed to show relevancy when only 2 of 280 produced audio tapes were relevant; request for spoliation sanctions denied for destruction of other audio tapes). But cf. E.I. DuPond De Nemours and Company v. Kolon Industries, Inc., Civil Action NO 3:09cv058 (E.D.Va 2013)(plaintiff gets 4.5 million dollars for files deleted by defendant, where a computer forensics expert proved the relevancy of the deleted data).
Third-party involvement in eDiscovery disputes.
See, e.g., Apple v. Samsung, Case No. 12-CV-0630-LHK(PSG)(N.D.Ca. 2013)(third party Google ordered to produce its search term methodology); Chevron Corp. v. Steven Donzinger, et al., No. 11 Civ. 0691 (LAK)(S.D.N.Y. March 15, 2013)(third party, a law firm, ordered to produce email threads and ESI concerning its former client); Optiver Australia v. Libra Trading, 2013 WL 256771 (N.D.Cal.)(third party subpoena quashed under Stored Communications Act, with the exception of metadata).
Search term disputes over proper methodology.
See, e.g., Apple v. Samsung, Case No. 12-CV-0630-LHK(PSG)(N.D.Ca. 2013)(court demands to know how Google created the search term universe in which it produced relevant data); Robert Bosch LLC v. Snap-on, Inc. Case No. 12-11503 (E.D. Mich. 2013)(defendants ordered to cooperate with plaintiffs regarding selection of proper search terms); In re Coventry Healthcare, Inc. ERISA Litigation (2013 WL 1187909 (D.Md.)(plaintiffs agreed to cooperate with defendants to further cull document and data production with meet and confer conference on search terms).
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