Welcome to the new eLessons Learned

eDiscovery Written by Law Students

eDiscovery Written by Law Students

eLessons Learned features insightful content authored primarily by law students from throughout the country. The posts are written to appeal to a broad spectrum of readers, including those with little eDiscovery knowledge.

Law + Technology + Human Error

Law + Technology + Human Error

Each blog post: (a) identifies cases that address technology mishaps; (b) exposes the specific conduct that caused a problem; (c) explains how and why the conduct was improper; and (d) offers suggestions on how to learn from these mistakes and prevent similar ones from reoccurring.

New to the eDiscovery world?

New to the eDiscovery world?

Visit our signature feature, e-Discovery Origins: Zubulake, designed to give readers a primer on the e-discovery movement through blog posts about the Zubulake series of court opinions which helped form the foundation for e-discovery. Go There

Contribute to eLessons Learned

Contribute to eLessons Learned

Interested students may apply for the opportunity to write for e-Lessons Learned by filling out the simple application. Go There

FBI Warns Unsuspecting Travelers of Cyber Booby Traps Found In Hotel Internet Connections

The Internet Crime Complaint Center (IC3) issued a notice on May 8th that revealed a recent claim by the FBI and other agencies that cyber criminals are targeting travelers abroad through pop-up windows while they attempt to connect to the Internet in their hotel rooms. Specifically, as travelers attempt to setup a hotel room Internet connection through their laptop, they are presented with a pop-up window that asks to update a widely-used software product. If the user clicks “accept and install,” malicious software downloads on the travelers’ laptops. The pop-up window appears to offer a routine update to a legitimate software product for which updates are frequently available. 

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Peck Wins By Submission; Parties Get Shot At Title Fight

Thanks for joining eLessons Learned for the latest installation on Moore v. Publicis!  As eDiscoverista predicted (don't look so surprised), plaintiffs filed a formal motion for review of Judge Peck's approval of predictive-coding protocol.  Because magistrates are afforded broad discretion in resolving discovery disputes, Judge Carter upheld Magistrate Peck's ruling as it was "well reasoned" and not erroneous or contrary to law, in accordance with Rule 72(a).  Peck's ruling met the well-reasoned standard because he considered the circumstances surrounding use of computer-assisted document review, carefully crafted a protocol that contained standards for measuring its reliability in terms of process and method, and built in levels of participation and quality assurance for both sides. Last Month on Moore v. Publicis… If you've just joined us, this landmark e-discovery dispute arose on February 8, 2012 in connection with plaintiffs' allegation that defendants, Publicis Groupe & MSL Group, engaged in systematic, company-wide gender discrimination against female employees by limiting women to entry-level positions. 

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CISPA Moves Forward, But Still Just a Bill

In a nutshell, the Cyber Intelligence Sharing and Protection Act (CISPA) provides the government with the power to share classified information about security threats with certain U.S. companies so that these companies can use that information to better protect their computer networks that store sensitive, proprietary, and confidential information, including intellectual property and trade secrets.  CISPA allows companies to share information relating to cyber security with government authorities and protects those companies against privacy lawsuits. CISPA has broad support from many of the U.S.’s most powerful and influential companies and trade associations, including IBM and Verizon, the Securities Industry and Financial Markets Association, and the American Petroleum Institute.  For a list of members of the House who supported CISPA, click here; for a list of businesses and trade associations that support CISPA, click here.  

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A is for Apple Appeal: Peck’s Approval of Computer-Assisted Review is Under Review

It seems like just days ago I was celebrating Judge Peck's approval of computer-assisted review of documents to identify those responsive to discovery requests.  You too?  Well, take off your party hat -- Computer-assisted review, specifically Judge Peck's endorsement of a predictive coding protocol, is under review. **BREAKING NEWS!** Get the latest at the end of this article.** In my last post, I explained that Judge Andrew J. Peck, U.S.M.J., author of e-discovery articles and an e-discovery advocate, opined with regard to a discovery dispute in connection with Moore v. Publicis.  Therein, plaintiffs allege that defendants, Publicis Groupe & MSL Group, engaged in systematic, company-wide gender discrimination against female employees by limiting women to entry-level positions.  Counsel sought to cull discovery responsive to plaintiffs’ first round of requests from three million electronic documents using predictive coding technology.

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Government Not Required to Produce ESI in Manner Requested by Defendants in Cocaine Distribution Conspiracy Case

In his November 23 decision, federal Magistrate Judge Hugh Scott held that the government was not required to produce electronically stored information (“ESI”) in the manner requested by the defendants in a 24-person criminal cocaine distribution conspiracy.  Judge Scott made it clear that in the absence of a clear criminal standard, he would follow analogous civil standards for distribution of ESI.  But see Subsequently adopted standards released recently by criminal rules committee.   Defendant Damian Ard, joined by ten other defendants (including the named defendant, Briggs), moved to amend the criminal ESI Order to clarify the manner in which specific government ESI should be produced.  The original ESI Order required the government to choose between producing ESI in its native format and reproducing it in a searchable format.

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Electronic Discovery as a Modern Convenience: A Burden or a Boon?

In Re Ricoh Co., Patent Litig. arose out of a disagreement over cost-shifting after a patent litigation.  The award was based on 28 U.S.C. § 1920(4) which grants courts the power to tax as costs “fees for exemplification on the cost of making copies of any materials where the copies are necessarily obtained for use in the case.”  Both parties in Ricoh ran into problems with this provision.  Ricoh claimed that electronic discovery was merely a modern convenience, while Synopsys could not meet the stringent demands of the electronic world. Ricoh first took issue with the district court’s award of costs to Synopsys for Stratify, a third-party electronic database service.  Ricoh and Synopsys could not agree on a form of production of certain documents tied to the patent litigation.  Ricoh subsequently suggested that Synopsys use Stratify to produce the documents in question.  Synopsys agreed, only to have Ricoh argue that Stratify does not qualify under §1920(4) because it was used merely for the convenience for counsel, and not actually necessary for the case.

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In Electronic Discovery, Poorly Done Demands Can Become Million Dollar Mistakes

The first line of the Court’s opinion says it all: “This case highlights the dangers of carelessness and inattention in e-discovery.”  In this particular instance, “carelessness” and” inattention” to the nature, scope, and parameters of search terms and locations in a discovery stipulation almost resulted in a required document review of more than 95 million pages and a multi-million dollar bill for the Plaintiff.  While the court here did not require Plaintiff to complete the review, citing the unreasonable burden and expense, this case should serve as a reminder to attorneys of the importance of well-crafted electronic discovery requests and a warning of what could occur should they fall short.  

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How far does an open public records law go in accommodating the requestor?

This case deals with the interpretation and application of Wisconsin’s open records law, Wis. Stat. § 19.31 et seq. (2005-06).  How far does the open records law go in accommodating a requestor?  Is a governmental body required to bend over backwards to not only provide the information requested but generate it in the specific form requested even if that means having to hire new employees just for the task?  What kind of burden do we want to place on our governmental bodies? This case arose when WIREdata made open records requests to Wisconsin municipalities Sussex, Thiensville, and Port Washington to provide WIREdata with information about their property assessments. WIREdata’s intention was to take the information and sell it to local realtors and brokers.

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International Parties Beware: You Can’t Always Hide Behind Countries’ Blocking Statutes to Escape Production of Documents in US Courts

Foreign nations seek to protect parties within their borders in international litigation by enacting “blocking statutes.”  These statutes protect a party from having to produce documents or information to be used as evidence in foreign judicial or administrative proceedings.  Failure to comply with the blocking statute can subject the foreign party to criminal sanctions. What do these statutes mean for American parties seeking to obtain documents or information through discovery?  An outcome to be avoided: further delay of the discovery process.  The French blocking statute at issue in In re Air Cargo Shipping Services Antitrust Litigation protected French parties from the production of documents or information in foreign proceedings unless the request was made pursuant to the Hague Convention or other treaties.  In this case, which was already into its fourth year at the time of the district court’s opinion, and other cases still in discovery after years have elapsed, further delay could prove very costly.

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Foreign Relations Law: Does the US always come out a winner?

In a discovery dispute between two parties in a civil matter, the United States, as a government entity, is not usually found to have a superseding interest. However, in a trademark infringement case between two companies, where a third party challenges a discovery request to produce documents regarding a party’s foreign bank accounts, the US District Court finds that the United States has a substantial interest in the foreign production of documents. In Gucci America, Inc. v. Curveal Fashion, the trademark infringement case is between Gucci America and Curveal Fashion, yet the discovery dispute is between the plaintiff Gucci America and the third party, United Overseas Bank Limited, Singapore and its subsidiary United Overseas Bank (Malaysia) (“UOB Malaysia”). In issuing a default judgment in favor of the plaintiffs in the trademark infringement case, the court also issued a subpoena for UOB Malaysia to produce documents regarding the defendants’ Malaysian bank accounts. UOB’s New York Agency refused to comply with the subpoena on grounds of legal implications that would ensue if UOB Malaysia were to comply with the subpoena.

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