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3 Most Significant eDiscovery Cases of 2015

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By Jonathan R. Tung, Esq. on December 24, 2015 1:00 PM

It has been claimed that eDiscovery now eclipses traditional discovery to the tune of 95 percent to five. At least one source claims that at least 95 percent of discovery is "borne" from a digital source. There's no denying the obvious: eDiscovery is a major part of legal practice.

Here is a quick review of the more significant eDiscovery cases of 2015.

Clear-view Technologies v. Rasnick

You might balk at the idea that text messages would ever qualify as business records, but you would be unwise to do so. Earlier this year, a federal district court in California penalized defendants when they deleted text messages and discarded PCs and other relevant documents more than two years before litigation began. You might be asking: "How can one reasonably anticipate litigation several years out?" Well, apparently you should, and your duty to preserve evidence starts ... now!

This is a terrifying development for companies who rely heavily on employee cell phone use. It also represents a novel and perhaps experimental testing of the expansion of the FRCP's Rule 37. There seems to be a recognition by the courts that electronically stored information has grown "exponential[ly]" in the last few years, and that courts are taking steps to address the issue.

Silva v. Dick's Sporting Goods

Silva stands for the rule that broad requests for all of the opposing party's statements on social media that may possibly be relevant to the case cannot simply be forced for reproduction. The defendant asked for plaintiff to reproduce over 2,500 pages of non-redacted comments that might hopefully relate to plaintiff's statements concerning mental health and other issues. The court in that case found that defendant's request was way too broad.

Revised discovery scope of FRCP 26(b)(1) (now effective Dec. 1) has clamped down, making it even more difficult for litigants to get their hands on social media content. A review of the rule will reveal that courts will consider the weight of the issues, hardships, and proportionality. In other words, it's a toss up that's anybody's guess.

Colosi v. Jones

Colosi stands for the rather new theory that ISO "imaging" is a type of "copy" for the purposes of 28 U.S.C sec. 1920(4). This is significant because under that statute, prevailing parties may recover at least a portion of discovery costs so long as they can also show that such copying was necessary for the purposes of litigation.

Of course, prior cases have understood "copy" to encompass acts like actual hand-copying to photocopying. But Judge Keith Cook of the Sixth Circuit said that taking the image of a hard drive (generally known as an ISO), also falls under the definition of copying, even with the word "copy" being rooted in a more historical context.

It's doubtful that the FRCP issue of "copy" versus "image" will be an issue that will ever see SCOTUS's eyes, but it means, at least in federal courts within the Sixth Circuit, litigants must now consider whether or not they want to potentially jump on the hook for e-discovery reimbursement.

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