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2011 eDiscovery Year End Wrap-up

It has certainly been a banner year in eDiscovery.  Judge Scheindlin kicked things off with a bang with her decision in National Day Laborer Organizing Network v. U.S. Immigration and Customs Enf. Agency[1], that the federal government must include metadata in Freedom of Information Act (FOIA) products because certain key metadata fields are an integral part of public records.  This ruling struck fear into every government agency and would have created the need for massive changes to the way they kept and produced records.  However, Judge Scheindlin withdrew the opinion in June explaining that, “as subsequent submissions have shown, that decision was not based on a full and developed record.”  She further stated that “[b]y withdrawing the [previous] decision, it is the intent of this Court that the decision shall have no precedential value in this lawsuit or any other lawsuit.”  I guess we are left to draw our own conclusions from that statement.

2011 also saw the rise in importance of machine based classification and coding.  This was emphasized by the keynote speech given by Judge Andrew Peck at the Carmel Valley eDiscovery Retreat in July.  He gave what is considered one of the clearest statements yet by a judge that the use of new technology like predictive coding is an acceptable way to conduct search in appropriate civil litigation cases.  He memorialized his thoughts in a well written article a few months later.[2]

Issues about managing eDiscovery in the cloud and for social media gained attention due to cases such as Social Networking Katiroll Co., Inc. v. Kati Roll and Platters, Inc.[3] (Court ordered an individual defendant to re-post the previous Facebook profile picture to allow the plaintiff to print any posts it felt were relevant), Offenback v. L.M. Bowman, Inc.[4] (Judge ordered production of photographs and postings on Facebook), Piccolo v. Patterson[5] (Motion to compel Plaintiff to accept defense attorneys “friend request “was denied) and Zimmerman v. Weis Markets, Inc.[6] (Plaintiff ordered to provide all passwords and usernames for Facebook and MySpace to the defendant and preserve all existing information). The solutions to address these challenges will undoubtedly gain mindshare in the new year.

Some of the dominant points of contention in 2011 were around cost shifting and taxation of eDiscovery costs. The courts did not settle on a unanimous viewpoint regarding these concerns however a number of cases seem to indicate a shift toward taxing of eDiscovery costs to the losing party.[7]

The top concerns in 2011 however were around preservation and proportionality.  Those concerns were highlighted in the recent case of Pippins v. KPMG LLP .[8]   In this case, the plaintiffs, potential members of a nationwide FLSA collective and/or a putative New York State class, challenged KPMG’s treatment of accountants in its audit practice.  KPMG tried to narrow the scope of its preservation obligation to a random sample of 100 hard drives from among those it had already preserved for this and other litigation. Alternatively, KPMG sought to shift the cost of any preservation beyond the scope it had suggested because there were more than 7,500 potential opt-in plaintiffs to the FLSA collective nationwide. Not only did the Magistrate Judge order that KPMG must preserve the hard drives of computers used by anyone who might join in the action, he also denied their request for cost shifting.

Perhaps it is because of cases like these that the single biggest news this year is that the Advisory Committee on Civil Rules is considering amending the Federal Rules of Civil Procedure (FRCP) once again.   The process has energized many in the legal community to provide their input and influence in various forums to make sure their point of view is considered.[9] Some decision should come out of the committee early next year.

In all, with 2011 being such a bumper year for eDiscovery, 2012 will undoubtedly provide many new developments to keep eDiscovery professionals on their toes.

[1] 2011 W.L. 38162510 (S.D.N.Y. Feb. 7, 2011)

[3] 2011 WL 3583408 (D.N.J. Aug. 3, 2011)

[4] 2011 WL 2491371 (M.D. Pa. June 22, 2011)

[5] Case No. 2009-04979 (Pa. Com. Pl. Order of May 5, 2011)

[6] 2011 W.L. 2065410 (Pa. Com. Pl. 19 May 2011)

[7] Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 2011 WL 1748620 (W.D. Pa. May 6, 2011); Jardin v. DATAllegro, Inc., 2011 WL 4835742 (S.D. Cal. Oct. 12, 2011); Promote Innovation LLC v. Roche Diagnostics Corp., 2011 WL 3490005 (S.D. Ind. Aug. 9, 2011)

[8] No. 11 Civ. 0377 (CM)(JLC), 2011 WL 4701849 (S.D.N.Y. Oct. 7, 2011)

[9] For more on this topic see: http://bit.ly/vDGhO3


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