Ediscovery Trends

Trends in Ediscovery and Litigation Support

  • Just ran across this case which took place earlier this year.  The Eighth Circuit court declined to enforce sanctions against the City of St. Paul for failure to enforce a legal hold.  If you read further, you’ll discover that one reason the court did not act on this is that plaintiff’s counsel did not properly brief the court on this issue, and did not show any evidence that defendants acted in bad faith.

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    In short, the district court (first the magistrate judge and as affirmed by the district court judge) held that spoliation sanctions for the failure to implement a litigation hold were not warranted. The Eighth Circuit affirmed using an abuse of discretion standard of review. In other words, did the lower court’s opinion deviate from applicable law in an arbitrary or unreasonable way. The Eighth Circuit held that the record failed to establish prejudice to the plaintiffs or an intentional destruction of evidence or withholding of evidence in an attempt to suppress the truth. For anyone keeping score on litigation hold decisions, this is very helpful to an organization that accidentally loses or destroys electronically stored evidence – with or without a legal hold in place.

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  • Even one of the biggest names in data storage cannot escape a costly mistake when it comes to eDiscovery.

    SanDisk was requested by opposing counsel to produce the hard disk images that were used by two former employees.  No problem, right?  SanDisk had already put away the laptops temporarily (in compliance with a legal hold), but decided they would like to use the laptops again, so they moved the former employees’ images to their servers.

    Then, of course, they lost the data.

    In the end, SanDisk was sanctioned not because they couldn’t find what they were looking for, and not because of the process they used to recover the data (they took it from a tape backup), but because they had not been forthcoming about what really happened to the data.  Because of this, plaintiffs endured a longer delay than was originally anticipated, hence the need for the ediscovery sanctions.

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  • Microsoft’s Sharepoint Server 2007 has some limited eDiscovery functionality baked in to the software.  It’s mostly used for legal holds, and can only be used with the Records Center site template.  But with Sharepoint Server 2010, expect more features and functionality.

    First of all, any site collection is now able to be targeted by Sharepoint’s Legal Hold functions, not just the Record Center site.

    Sharepoint will also now be able to search your site collections for data that could be subject to a legal hold.  Finally, Sharepoint Server 2010 will also be able to export these search results into a separate repository for review and analysis.  No word yet on whether you will be able to export into a document review platform or EDRM XML.

    For more info on ediscovery and Sharepoint 2007, check out this link.

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