Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Category Archives: E-Discovery

Subscribe to E-Discovery RSS Feed

Consolidation, Like Marriage, Preserves the Distinct Identities and Rights of Its Constituents

In its recent decision in Hall vs. Hall, the U.S. Supreme Court ruled unanimously that after a final decision in one of several consolidated cases, the losing party has the immediate right to appeal that decision, even when other consolidated cases are still pending. Courts may consolidate cases for efficiency. Writing for the Court, Justice … Continue Reading

The Lynyrd Skynyrd Texting Case: Spoliation and Non-Party Texts

It was a tragedy. The 1977 plane crash that killed Ronnie Van Zant and Steven Gaines almost ended the band Lynyrd Skynyrd forever. In the wake of the crash, the survivors swore an oath never again to perform as “Lynyrd Skynyrd.” That oath made its way to court where it would be memorialized in a … Continue Reading

Deceptive Discovery: Second Circuit Affirms Sanctions for Mishandling of Discoverable Data

Late last month, in Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., the Second Circuit affirmed a $2.7 million sanctions award against defendant ePRO after repeated instances of discovery misconduct. Finding that the district court’s award properly reflected the additional costs plaintiff Klipsch Group Inc. was forced to bear due to ePRO’s actions, the Second Circuit … Continue Reading

Privacy vs. Security: Will SCOTUS Leave the (Third) Party in 2018?

If the government obtains information about your past locations from your wireless provider, is that a search? If so, is it a search that requires the government to obtain a warrant? Courts have held that, because companies collect this kind of data in the ordinary course of business, consumers who voluntarily provide information to these … Continue Reading

eDiscovery Includes Electronic Vehicle Data and Possible Sanctions for Spoliation

Discovery of relevant material extends far beyond documents created on personal computers. Discoverable data exists in many forms, including electronic data found in vehicles such as tractors used for tractor-trailers. This type of data is also subject to spoliation sanctions if not properly preserved. A recent case in the Northern District of Alabama, Barry v. … Continue Reading

You Want to Review ESI that the Other Side has Deemed Nonresponsive? That’ll Be Extra

Have you ever thought your adversary was withholding relevant ESI from document production? Have you wanted to look at the withheld documents to show that some are indeed relevant? Well, you might be able to – but it’ll cost you. In Nachurs Alpine Solutions, Corp. v. Banks, an Iowa District Court recently ordered that documents … Continue Reading

Social Media eDiscovery: Filter Needed

A ski trip with your fiancé results in a great photo of the two of you on a snow covered mountain; obviously, the picture is destined for your Facebook page. This picture may be used for more than to show off your good time and skiing ability, however, if you’re the plaintiff in a personal injury … Continue Reading

‘Cause You’ve Got Proportionality: Overview of The Sedona Conference Commentary on Proportionality in Electronic Discovery

Recently, The Sedona Conference, a research and educational institute, published its 2016 Public Comment Version of The Sedona Conference Commentary on Proportionality in Electronic Discovery. This is the third version of this publication, which reflects the change and emphasis on proportionality under the 2015 amendments to the Federal Rules of Civil Procedure. The Commentary sets … Continue Reading

Not an LOL Matter: Court Provides Guidance on Steps Litigants Should Take to Preserve Text Messages

We’ve all been there. Your friends throw you in the pool with your phone in your pocket. You repeatedly slice your finger on shards of glass from your phone’s shattered screen. Or, maybe you forget your phone isn’t waterproof and dump champagne all over it. For most of us, the worst part of these ordeals … Continue Reading

Not a Foreign Concept: Court Orders Production of Native ESI Files to Verify That Data Had Not Been Manipulated

A common issue in almost any case involving the production of electronically stored information (“ESI”) is the format in which the parties will produce the ESI. Typically, ESI may be produced in one of four formats: native (the format in which it is maintained on the producing party’s system – e.g. a Microsoft Word or … Continue Reading

Is a Third Party Entitled to its E-Discovery and Attorney Costs for Responding to a Subpoena?

Although e-discovery has been part of complex commercial litigation for over a decade, there have been only a few federal appellate court rulings about e-discovery topics. On April 7, 2016, in In re Am. Nurses Ass’n, the Fourth Circuit became the latest appellate court to issue such a ruling. The Court upheld a district court’s … Continue Reading
LexBlog