Generally, a litigation hold letter* will issue to preserve documents and information potentially relevant to a reasonably anticipated lawsuit. However, when does one’s duty to preserve potentially relevant documents end? Unfortunately, the answer is not necessarily when the litigation ends. Indeed, a recent decision out of California reminds us there may be instances when one’s
Cooperation and Collaboration in E-Discovery is Still the TARget
My February 17th blog, “Judges Make the Case for TAR” discussed the widespread acceptance by federal courts of technology assisted review (“TAR”), which is acknowledged as cost effective, efficient, and likely superior to the tried and true keyword searching methodology. Continuing with the theme of TAR, the District Court of New Jersey recently
Courts Won’t Go “Where Angels Fear to Tread” When Deciding On Search Term Issues
Employing search terms to identify documents relevant to a lawsuit is a commonly accepted practice. However, issues inevitably arise during the process of crafting search terms. For example, how are search terms agreed upon? What is the proper scope of search terms? Are the proposed terms appropriate for identifying different types of electronically stored information
Blink, And I’m Gone: E-Discovery Challenges and Considerations With Ephemeral Messaging
There is an ever-increasing volume of data generated by businesses. In an effort to reduce storage costs and ameliorate privacy concerns, companies have embraced ephemeral, or self-destructing messaging. And, while ephemeral messaging may solve one set of problems, it has the potential to create preservation issues when legal matters arise.
Recently, the Sedona Conference released
Judges Make the Case for TAR
Litigants often disagree about which method of identifying potentially responsive electronically stored information (“ESI”) is best. Specifically, the use of keywords versus technology assisted review (“TAR”)* is typically the topic of the debate. In deciding these disputes, Judges have seemingly embraced TAR as preferable, but stop short of mandating TAR’s use, citing to Principle
Court Enforces Strict Sanctions for Failing to Be Competent in ESI Obligations
Historically, the legal profession has been reluctant to embrace technology and electronic discovery in the practice of law. Indeed, practitioners often still exchange discovery in paper format or ignore, altogether, medium, like text messages, that may be repositories of relevant information. A recent case — In DR Distributors, LLC v 21 Century Smoking, Inc. –
Is Your Zoom-Bombed Meeting Discoverable?
As the pandemic continues and businesses adapt to the realities of virtual workforces, the “Zoom-Bombing” pranks housemates played on one another are a thing of the past.* Rather, we now must confront the discovery implications this virtual shift presents. For example, the increased use of virtual platforms, replete with recording features, may expose a
The Costs of E-Discovery and What May be Recoverable Under 28 U.S.C. § 1920
Pursuant to 28 U.S.C. § 1920, a prevailing party may have a right to recover certain costs associated with the litigation. Many prevailing parties seek to recoup costs attendant to e-discovery, given the expense associated with collecting, processing and producing electronically stored information (“ESI”). However, most federal courts confronting the issue have determined that e-discovery
TAR 1.0 vs TAR 2.0: Is the Newer Version the Better Version?
Technology-assisted review (“TAR”) is a powerful tool used to streamline document review. Because data volume is constantly increasing, TAR was designed to leverage human categorization of documents (i.e., responsive/not responsive) to educate software, that would, in turn, categorize additional documents based upon what the computer had “learned.”
The original TAR (commonly known as TAR
“You Can’t Heal What You Never Reveal”: Plaintiffs Are Entitled to Sanctions and Adverse Inference at Trial Because Jay-Z and S. Carter Enterprises Destroyed Emails After Litigation Was “Reasonably Anticipated.”
The duty to preserve potentially relevant evidence – documentary or electronic – arises when a lawsuit is reasonably anticipated. Although this is a subjective standard, Parlux Fragrances, LLC et al v. S. Carter Enterprises, LLC et al. illustrates a recent decision where a court imposed sanctions and an adverse inference because the defendants failed to