The First 7 to 10 Days May Make or Break Your Case: eDiscovery Best Practices

By : Doug Austin

When a case is filed, several activities must be completed within a short period of time (often as soon as the first seven to ten days after filing) to enable you to assess the scope of the case, where the key electronically stored information (ESI) is located and whether to proceed with the case or attempt to settle with opposing counsel. Here are several of the key early activities that can assist in deciding whether to litigate or settle the case.

Court Orders Defendant to Submit Further Declaration after Plaintiff Disputes its Claimed eDiscovery Costs – eDiscovery Case Law

By : Doug Austin

In Bonillas v. United Air Lines Inc., California Chief Magistrate Judge Elizabeth D. LaPorte ordered the defendant to submit a further declaration supporting its claimed eDiscovery costs by addressing several issues raised by no later than January 5, 2015, with the plaintiff having until January 8, 2015 to submit a brief response to the further declaration if he chose to do so.

2014 eDiscovery Case Law Year in Review, Part 3

By : Doug Austin

As we noted yesterday and the day before, eDiscoveryDaily published 93 posts related to eDiscovery case decisions and activities over the past year, covering 68 unique cases! Yesterday, we looked back at cases related to eDiscovery cost sharing and reimbursement, fee disputes and production format disputes. Today, let’s take a look back at cases related to privilege and inadvertent disclosures, requests for social media, cases involving technology assisted review and the case of the year – the ubiquitous Apple v. Samsung dispute.

2014 eDiscovery Case Law Year in Review, Part 2

By : Doug Austin

As we noted yesterday, eDiscoveryDaily published 93 posts related to eDiscovery case decisions and activities over the past year, covering 68 unique cases! Yesterday, we looked back at cases related to admissibility and proportionality as well as cases involving discovery on discovery. Today, let’s take a look back at cases related to eDiscovery cost sharing and reimbursement, fee disputes and production format disputes.

2014 eDiscovery Case Law Year in Review, Part 1

By : Doug Austin

It’s time for our annual review of eDiscovery case law! We had more than our share of sanctions granted and denied, as well as disputes over admissibility of electronically stored information (ESI), eDiscovery cost reimbursement, and production formats, even disputes regarding eDiscovery fees. So, as we did last year and the year before that and also the year before that, let’s take a look back at 2014!

Court Agrees with Defendants that Producing Medical Records in Native Form is an “Undue Burden” – eDiscovery Case Law

By : Doug Austin

In Peterson v. Matlock, New Jersey Magistrate Judge Douglas E. Arpert denied the plaintiffs motion to compel defendants to produce the plaintiff's electronically stored medical records in “native readable format” after the defendants produced the records in PDF format, agreeing that the defendants had demonstrated that they would suffer an undue burden in complying with the plaintiff's request.

Court Allows Costs for TIFF Conversion and OCR, Likens it to “Making Copies” – eDiscovery Case Law

By : Doug Austin

In Kuznyetsov v. West Penn Allegheny Health Sys., Pennsylvania Senior District Judge Donetta W. Ambrose upheld the Clerk of Courts issuance of Taxation of Costs for $60,890.97 in favor of the defendants and against the named the plaintiffs, including costs for “scanning and conversion of native files to the agreed-upon format for production of ESI”.

The Importance of Metadata – eDiscovery Best Practices

By : Doug Austin

If an electronic document is a “house” for information, then metadata could be considered the “deed” to that house. There is far more to explaining a house than simply the number of stories and the color of trim. It is the data that isn’t apparent to the naked eye that tells the rest of the story. For a house, the deed lines out the name of the buyer, the financier, and the closing date among heaps of other information that form the basis of the property. For an electronic document, it’s not just the content or formatting that holds the key to understanding it. Metadata, which is data about the document, contains information such as the user who created it, creation date, the edit history, and file type. Metadata often tells the rest of the story about the document and, therefore, is often a key focus of eDiscovery.

Apple Recovers Part, But Not All, of its Requested eDiscovery Costs from Samsung – eDiscovery Case Law

By : Doug Austin

Apple won several battles with Samsung, including ultimately being awarded over $1 billion in verdicts, as well as a $2 million sanction for the inadvertent disclosure of its outside counsel firm (Quinn Emanuel Urquhart & Sullivan LLP) commonly known as “patentgate”, but ultimately may have lost the war when the court refused to ban Samsung from selling products that were found to have infringed on Apple products. Now, they’re fighting over relative chicken-feed in terms of a few million that Apple sought to recover in eDiscovery costs.

Survey of Corporate Counsel Finds that there is Much Room for Improvement in Handling eDiscovery – eDiscovery Trends

By : Doug Austin

Yesterday, we discussed a new self-assessment test that enables organizations to measure their eDiscovery “maturity”. Today, we look at a new survey of corporate counsel from BDO Consulting that shows that they feel there is substantial room for improvement when evaluating their organizations' effectiveness in managing eDiscovery.

Court Rules to Limit Scope of Discovery, Noting that “Searching for ESI is only one discovery tool” – eDiscovery Case Law

By : Doug Austin

In United States v. Univ. of Neb. at Kearney, Nebraska Magistrate Judge Cheryl R. Zwart denied the government’s motion to compel discovery, finding that “ESI is neither the only nor the best and most economical discovery method for obtaining the information the government seeks” and stating that searching for ESI “should not be deemed a replacement for interrogatories, production requests, requests for admissions and depositions”.

How Much Will it Cost? – eDiscovery Best Practices

By : Doug Austin

By far, the most important (and, therefore, the most asked) question asked of eDiscovery providers is “How much will it cost?”. Actually, you should be asking a few questions to get that answer – if they are the right questions, you can actually get the answer you seek.

Though it was “Switching Horses in Midstream”, Court Approves Plaintiff’s Predictive Coding Plan – eDiscovery Case Law

By : Doug Austin

In Bridgestone Americas Inc. v. Int'l Bus. Mach. Corp., Tennessee Magistrate Judge Joe B. Brown, acknowledging that he was “allowing Plaintiff to switch horses in midstream”, nonetheless ruled that that the plaintiff could use predictive coding to search documents for discovery, even though keyword search had already been performed.

Our 1,000th Post! – eDiscovery Milestones

By : Doug Austin

When we launched nearly four years ago on September 20, 2010, our goal was to be a daily resource for eDiscovery news and analysis. Now, after doing so each business day, I’m happy to announce that today is our 1,000th post on eDiscovery Daily! Check out what we've covered over 1,000 posts!

Court Sides with Defendant in Dispute over Predictive Coding that Plaintiff Requested – eDiscovery Case Law

By : Doug Austin

In the case In re Bridgepoint Educ., Inc., Securities Litigation, California Magistrate Judge Jill L. Burkhardt ruled that expanding the scope of discovery by nine months was unduly burdensome, despite the plaintiff’s request for the defendant to use predictive coding to fulfill its discovery obligation and also approved the defendants' method of using search terms to identify responsive documents for the already reviewed three individual defendants, directing the parties to meet and confer regarding the additional search terms the plaintiffs requested.

Court Orders Sharing of Costs for Forensic Examination of Plaintiff’s Emails – eDiscovery Case Law

By : Doug Austin

In Zeller v. So. Central Emergency Med. Servs. Inc., Pennsylvania Magistrate Judge Karoline Mehalchick used the Zubulake seven factor test to rule that the costs for restoring and searching the plaintiff's emails should be shared, up to a maximum contribution by $1,500 by the plaintiff.

Court Denies Defendant’s Request to Image Plaintiff’s PCs Three Years after Termination – eDiscovery Case Law

By : Doug Austin

In Downs v. Virginia Health Systems, Virginia Magistrate Judge James G. Welsh, citing proportionality and privacy concerns, denied the defendant’s motion to compel the mirror imaging of the Plaintiff’s personal computers nearly three years after she had been terminated.

Are eDiscovery Vendor Fees “Unconscionable”? – eDiscovery Best Practices

By : Doug Austin

Could an eDiscovery vendor actually charge nearly $190,000 to process 505 GB and host it for three months? According to a recent post by Craig Ball in his Ball in Your Court blog, the answer is yes – based on a sworn affidavit from an eDiscovery expert leading a national litigation support vendor.

Want My Production? Here’s my Database! – eDiscovery Trends

By : Doug Austin

A couple of weeks ago, we covered a case where the US Government was ordered to continue providing access to an eDiscovery database to a defendant in a criminal case. That case shed light on a growing trend in the industry that I have also observed personally – “producing” documents to opposing counsel by providing access to the documents via a hosted eDiscovery solution.

Portions of Plaintiff’s Motion to Compel eDiscovery Ruled as “Overbroad” and “Moot” Reaffirmed by District Court – eDiscovery Case Law

By : Doug Austin

In Elkharwily v. Mayo Holding Co., Minnesota District Judge David S. Doty overruled the plaintiff’s objection to a magistrate judge’s order that denied in part the plaintiff’s motion to compel discovery, labeling some requests as overbroad or moot, particularly after the defendant contended it had already produced the requested discovery materials.



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About the Bloggers

Brad Jenkins

Brad Jenkins, President and CEO of CloudNine Discovery, has over 20 years of experience leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Doug Austin

Doug Austin, Professional Services Manager for CloudNine Discovery, has over 20 years experience providing legal technology consulting and technical project management services to numerous commercial and government clients. Doug has also authored several articles on eDiscovery best practices.

Jane Gennarelli

Jane Gennarelli is a principal of Magellan’s Law Corporation and has been assisting litigators in effectively handling discovery materials for over 30 years. She authored the company’s Best Practices in a Box™ content product and assists firms in applying technology to document handling tasks. She is a known expert and often does webinars and presentations for litigation support professionals around the country. Jane can be reached by email at