Riddle me this:  Is a document that resides on your network and which you embed in an email via a hyperlink the functional equivalent of an attachment to that email?

Magistrate Judge Katherine H. Parker, in a recent decision out of the Southern District of New York (Nichols v. Noom, Inc., No. 20-CV-3677 (LGS) (KHP) (S.D.N.Y. Mar. 11, 2021)
Continue Reading Just When You Thought You Understood ESI…

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 preservation obligations are ongoing, even
Continue Reading When Does My Duty to Preserve End?

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 addressed the critical importance of
Continue Reading Cooperation and Collaboration in E-Discovery is Still the TARget

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 (“ESI”)?  A decision out of
Continue Reading Courts Won’t Go “Where Angels Fear to Tread” When Deciding On Search Term Issues

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 the “Commentary on Ephemeral
Continue Reading Blink, And I’m Gone: E-Discovery Challenges and Considerations With Ephemeral Messaging

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 6 of The Sedona Principles
Continue Reading Judges Make the Case for TAR

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 an example supporting the
Continue Reading Court Enforces Strict Sanctions for Failing to Be Competent in ESI Obligations

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 litigant to discovery obligations beyond
Continue Reading Is Your Zoom-Bombed Meeting Discoverable?

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 costs are recoverable only in
Continue Reading The Costs of E-Discovery and What May be Recoverable Under 28 U.S.C. § 1920

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 1.0) was a welcomed advancement
Continue Reading TAR 1.0 vs TAR 2.0: Is the Newer Version the Better Version?