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E-discovery 2011 year in review: Preservation tops the list again with rulemaking efforts, taxation of costs and social media not far behind.
Kroll Ontrack, the leading provider of information management, data recovery, and legal technologies products and services announced its yearly analysis of reported electronic discovery opinions and notable e-discovery themes in 2011 late last year.
As a part of its ongoing commitment to thought leadership and education in the legal technology industry, the company has been tracking prominent themes in judicial opinions on an annual basis for the past four years. In 2011, preservation challenges topped the list of discovery concerns for the second year in a row, as law firms, corporations, members of the judiciary and the Federal Advisory Committee on Civil Rules grapple with these complex legal and technology issues.
Issues surrounding cost-shifting and the taxation of e-discovery costs, discovery of data from social media websites, and e-discovery in criminal cases emerged in 2011 as new themes in judicial opinions. The courts did not settle on a unanimous viewpoint regarding these cutting-edge e-discovery concerns, but these are topics the Advisory Committee on Civil Rules are considering as they evaluate the need for amendments to the Federal Rules of Civil Procedure.
From Jan. 1, 2011 to Oct. 31, 2011, Kroll Ontrack summarized 92 cases – some of the most significant state and federal judicial opinions on the topics of preservation and production of electronically stored information (ESI). The breakdown of the major issues involved in these cases is as follows:
- 42 percent of cases addressed sanctions
- 67 percent of sanctions involved preservation and spoliation issues
- 18 percent of sanctions involved withholding discovery, noncompliance with court orders and other abuses
- 15 percent of sanctions involved production disputes
- 14 percent of cases addressed various procedural issues such as searching protocol and cooperation
- 13 percent of cases addressed various production considerations
- 12 percent of cases addressed privilege considerations and waivers
- 11 percent of cases addressed cost considerations
- 3 percent of cases addressed preservation and spoliation issues, but not sanctions
- 2 percent of cases addressed discoverability and admissibility issues
- 1 percent of cases addressed computer forensics protocols and experts
“As the e-discovery industry continues to evolve, we are seeing legal teams and judges tackle more multi-faceted legal technology issues,” stated Michele Lange, director of discovery, Kroll Ontrack. “Five years ago, prominent themes in judicial opinions included whether metadata needed to be preserved and ideal production format. Given the maturation of technology and increased knowledge and awareness among the average litigant, today’s courts are facing more complex and intricate e-discovery challenges than ever before.”
Specifically, three notable emerging case themes from 2011 included:
Taxation of Costs
Jardin v. DATAllegro, Inc., 2011 WL 4835742 (S.D. Cal. Oct. 12, 2011). Court denied “motion to stay, deny or re-tax the Clerk’s taxation of costs awarded to Defendants,” for costs associated with converting “massive” amounts of data to TIFF format and work performed by a project manager.
In re Aspartame Antitrust Litig., 2011 WL 4793239 (E.D. Pa. Oct. 5, 2011). Court awarded total costs of $510,138.18 for creating a litigation database, processing and hosting electronic data, conducting keyword and privilege screens, making documents OCR searchable, extracting metadata, creating CDs and DVDs of electronic documents, and other related work. Court drew the line at advanced e-discovery technology in addition to costs associated with Bates and confidentiality labeling and converting TIFF documents to PDFs.
Promote Innovation LLC v. Roche Diagnostics Corp., 2011 WL 3490005 (S.D. Ind. Aug. 9, 2011). Court noted that precedent supports taxation of e-discovery costs under § 1920, which included costs incurred in ESI management techniques such as data restriction, custodian filtration, de-duplication, and repairing corrupted documents and database errors.
Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 2011 WL 1748620 (W.D. Pa. May 6, 2011). Court reviewed the varying case law among the jurisdictions, but noted that since the section’s language was amended in 2008, “no court has categorically excluded e-discovery costs” under § 1920. Finding that the costs paid to third party vendors were necessary for highly technical services and not merely for the convenience of the parties, the court held they were properly taxable to the plaintiffs.
Katiroll Co., Inc. v. Kati Roll and Platters, Inc., 2011 WL 3583408 (D.N.J. Aug. 3, 2011). Court determined the loss of the Facebook data at issue was somewhat prejudicial and ordered an individual defendant to re-post the previous profile picture to allow the plaintiff to print any posts it felt were relevant.
Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011). To the extent that such information was relevant under Fed.R.Civ.P. 26, the plaintiff agreed that limited public information on his Facebook account was discoverable and provided the password to the court. Upon review, the court agreed to the relevance of a limited amount of photographs and postings that reflected the plaintiff continued to ride motorcycles, went hunting and rode a mule, and ordered production of this information.
Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (C.P. Northumberland May 19, 2011). Court noted that no privilege exists in Pennsylvania for non-public social website information and the “paramount ideal” of pursuing truth favors liberal discovery. Agreed with the rationale in McMillen v. Hummingbird Speedway Inc. and Romano v. Steelcase, Inc., and ordered the plaintiff to provide all passwords and usernames to the defendant and preserve all existing information.
E-Discovery in Criminal Actions
United States v. Briggs, 2011 WL 4017886 (W.D.N.Y. Sept. 8, 2011). Court applied Fed. R. Civ. P. 34(b) as authority when it ordered the government to reproduce call data from wiretaps in searchable native or PDF format, but noted at length the need for a permanent analogue in the rules of criminal procedure as ESI will certainly become more prevalent in the criminal context over time, and expressed a hope that the Advisory Committee on Criminal Rules will address this issue at its earliest opportunity.
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