eDiscovery Roundup: Recoverable Costs, Records & Information Management, Predictive Coding, Zubulake, and More

For your convenience, a roundup of recent Electronic Discovery articles and updates posted on JD Supra. Includes video, below:

- Loser Pays Most Electronic Discovery Costs? Not So Fast [Morgan Lewis]

“The court of appeals found that less than 10% of the costs the district court awarded for electronic discovery charges were in fact taxable, eliminating more than $335,000 of the award. The court of appeals allowed recovery only for the costs it deemed equivalent to “making copies” under 28 U.S.C. § 1920(4), such as transferring VHS tapes to DVD, scanning hard-copy documents into electronic images, and converting native files into TIFF format…” Read on>>

- Recovery of E-discovery Costs [Miller Canfield]

“As these cases indicate, there is no consensus among jurisdictions regarding recoverable costs. However, courts have agreed on the importance of submitting a detailed bill of costs in order to recover even basic e-discovery related costs. In Ricoh, for example, the court remanded a $300,000+ award for reproduction and exemplification because the bill of costs did not provide sufficient detail to justify the award…” Read on>>

- Court Recognizes Computer-Assisted Review as an Acceptable Way to Search for Relevant Electronic Documents in Discovery [Patton Boggs]

“In the case of De Silva Moore v. Publicis Groupe, the parties agreed to computer-assisted review but disagreed on the coding protocol. In the opinion, the court addressed the protocol concerns and approved the use of computer-assisted review in discovery. The court noted that computer-assisted review is an available tool for discovery and ‘should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amount of legal fees in document review.’…” Read on>>

- Federal Court Applies Common Sense To “eDiscovery”; Sets Standard for Search Term Reasonableness [Quinn Emanuel]

“A recent federal court decision out of the District of New Jersey, I-Med Pharma, Inc. v. Biomatrix, Inc. et al., No. 03-3677 (D.N.J. Dec. 9, 2011) (Debevoise, J.) provides a set of common-sense standards for proceeding with ESI discovery searches and review, and clarifies that “exceptional circumstances” are not required to modify a discovery order, even one based on stipulation, where search terms turn out to be overbroad…” Read on>>

- Records and Information Management and Retention (Slideshow) [Venable]

“Records and Information Management (“RIM”) is a tool to manage the costs
of storage of records and maintenance of electronic information, and
the risks associated with either (a) not having records that are legally
required to be retained, or (b) maintaining records that could have
been destroyed or deleted pursuant to a RIM Policy…” Read on>>

- First-Ever Court Decision on Predictive Coding Approves Using Software to Identify Responsive Documents [Morrison & Foerster]

“Predictive coding, as explained below, is a method of using computer
software to identify the relevant documents. Under the right
circumstances, use of predictive coding can be a less expensive
alternative to the traditional document-by-document review model.
Because this is the first court decision to discuss predictive coding,
it will likely influence how predictive coding is treated by other
courts…” Read on>> 

- Predictive Coding Receives Judicial Stamp of Approval [Reed Smith]

“The Da Silva Moore opinion may go a long way toward allaying
fears of lawyers about the use of this technology because they “no
longer have to worry about being the ‘first’ or ‘guinea pig’ for
judicial acceptance of computer-assisted review.” Id. at 25.
However, the opinion notes that the use of predictive coding is not
suitable for all cases. Clients and their counsel must determine on a
case-by-case basis whether predictive coding is appropriate for the case
at hand…” Read on>>

- New York Appellate Court Adopts Zubulake in Imposing Adverse Inference for Handling of E-Mails [Schnader]

“In EchoStar, a unanimous First Department panel found that EchoStar
Satellite LLC, the owner of the DISH Network satellite broadcasting
company, failed in its duty to preserve relevant emails leading up to a
contract dispute with Voom HD Holdings LLC, a subsidiary of Cablevision.
In adopting Zubulake, the First Department held that it ‘provides
litigants with sufficient certainty as to the nature of their
obligations in the electronic discovery context and when those
obligations are triggered.’ The First Department found that the trial
court “properly invoked the [Zubulake] standard for preservation” and
affirmed the imposition of sanctions for spoliation” Read on>>

- The Pitfalls Of Paperless Discovery [Zelle Hofmann]

“Notwithstanding the sweet whisperings of e-discovery marketing gurus, there is no technology that allows an attorney to load a terabyte of ESI onto an e-discovery platform, push a button and obtain a set of responsive documents and a privilege log all bundled up and ready to produce…” Read on>>

- New Federal Guidelines Promote Uniform Treatment of E-Discovery in Criminal Proceedings [Bracewell & Giuliani]

“The Department of Justice (DOJ), the federal courts, and the criminal
defense bar have developed a set of guidelines that appears to be a
major step towards uniform treatment of e-discovery in federal criminal
investigations and federal criminal trials. For the time being, the new
protocol, signed earlier this month, has been introduced to the U.S.
Attorney’s Offices, investigative agencies, judges, and various law
enforcement divisions as a guideline and a training tool…” Read on>>

- Video: Manage your electronic data before facing litigation [Partridge Snow & Hahn]

 Go to video>>

Additional Electronic Discovery updates here>>