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As the e-discovery march goes on, litigants continue to wrestle with questions and disputes both familiar and novel. Eventually they land before the judiciary, which is doing its part to provide useful, informed guidance and to help shape a constantly evolving new frontier. The decisions in these recent cases, drawn from the past 15 months, touch on some of the hottest—and thorniest—issues in the world of e-discovery today.
Relevant case: The Southern District of New York case Nat’l Day Laborer Org. Network v. United States Immigration & Customs Enforcement Agency is one of the first to outline “the pitfalls of self-collection, where you’re solely relying upon the custodian to do their own document collection,” says Veeral Gosalia, senior managing director of FTI Consulting’s technology arm. “The reality is that a lot of corporations are doing this. Not because there’s anything nefarious or improper going on—not even necessarily that they think this is saving money—but because it seems logical in their minds.” An employee tasked with handling company data is most familiar with that data, after all. Why bring in an outsider? Although U.S. District Judge Shira Scheindlin’s July 2012 opinion doesn’t condemn self-collection, it emphasizes the importance of carefully monitoring custodians to ensure they are conducting appropriate searches.
Although FOIA places a higher burden on the government than what the Federal Rules of Civil Procedure require of litigants in discovery proceedings, Scheindlin’s opinion cites numerous non-FOIA cases. Many of the factors she considers in determining whether searches are adequate and whether attorneys are properly overseeing the collection process are applicable in the e-discovery context.
Relevant case: In the July 2012 case Chin v. Port Authority Of New York & New Jersey, a unanimous three-judge panel for the 2nd Circuit rejected the argument that a party’s failure to implement a written litigation hold when it reasonably anticipates litigation constitutes gross negligence per se—a stringent standard that Scheindlin established in two landmark e-discovery decisions, Zubulake v. UBS Warburg and Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC.
Proper litigation holds are still essential, but the relaxed standard the 2nd Circuit articulated represents the opportunity for relief from automatically imposed sanctions. “The tides may be changing when it comes to spoliation and sanctions for destruction of [electronically stored information] (ESI) as courts look for a flexible case-by-case approach instead of traditional Zubulake factors,” says Michele Lange, director of thought leadership and industry relations for legal technology provider Kroll Ontrack.