Legal Updates

In a perfect litigation world, parties would operate in good faith, draft reasonable discovery requests, answer requests completely and thoroughly, cooperate throughout the meet and confer process, and discovery would flow seamlessly. The real litigation world, however, does not usually follow this pattern. In December of 2015, the amended FRCP Rule 26(b)(1) sought to address the burdens associated with preservation and production by emphasizing proportionality and defining the scope of discovery. This article addresses the concept of "proportionality" and analyzes a recent case from the United States Disctrict Court, District of Columbia, which specifically addresses each proportionality factor.

Two of the most compelling discovery sanction cases of the past year are Klipsch Group., Inc. v. ePRO E-Commerce Ltd. and Ronnie Van Zant, Inc. v. Pyle, both decided in the Second Circuit. In the first, the court awarded $2.68 million in discovery sanctions in a case valued at a mere $20,000. In the second, the court issued an adverse inference when a defendant failed to preserve text messages held by a non-party. The implications of both decisions appear far-reaching and critically important for those involved in the discovery process.     

So, you’re deep in the weeds of your latest e-discovery project for an important client and things are going smoothly. An email now arrives from the review team flagged as urgent and with the tag line, “Take a look at this document, it’s got some pretty sensitive info - that isn't relevant - and I’m pretty sure the client won’t be happy sending this out.” Just redact it, right? At least one court disagrees.

The United States Supreme Court recently granted certiorari in the landmark case of United States v. Microsoft Corp. This matter presents the Court with an opportunity to establish new precedent in the field of international e-discovery. An amicus brief recently filed by some of the country’s leading e-discovery practitioners and professors, including Kilpatrick Townsend’s Global Discovery Counsel, Craig D. Cannon, urges the Court to use this occasion to provide further guidance as to the appropriate considerations of international comity that must be weighed when faced with a cross-border discovery dispute.

There was a time when the only data you needed to collect in response to a discovery request was corporate email. Fast forward to present day. Employees are conducting business with smartphones, via social media and with the assistance of wearable technology. As a result, responding to e-discovery requests has become increasingly challenging.

In the modern workplace, companies are beset with a multitude of challenges regarding ownership and use of devices such as laptops, mobile phones, tablets, and others, and the information on or accessed by them. It has become increasingly common for companies to follow a model called BYOD, or “Bring Your Own Device,” where an employee purchases their own device and the company pays for either all or partial service. While there are clear advantages to this type of business model, there are drawbacks that should be considered when drafting company policies.