5 E-Discovery Resolutions for 2015
In this Law Technology News article, the author, Patricia Antezana, suggests five resolutions regarding e-discovery for 2015 supported by recent case law. The author begins by suggesting a commitment to creating a “spirit of cooperation” during negotiations on ESI discovery and offers the case Boston Scientific Corp. v. Lee as illustrative of the court’s desire for “flexibility and creativity” during these discussions. The second resolution addresses the need for detailed descriptions of tasks associated with electronic data discovery efforts to support these costs as recoverable under the federal taxation of costs statues. The author offers several cases in which the amount of taxable expense awarded was reduced because the party failed to provide the court with sufficient details regarding EDD related fees. The author next addresses the need to ensure that data on mobile devices used by employees for business purposes be held and recovered during discovery and provides a summary Small v. University Medical Center of Southern Nevada, in which severe sanctions were imposed for the failure to preserve data on smartphones. In her fourth suggested resolution, Ms. Antezana notes that in areas such as party cooperation, proportionality, and remedies for spoliation, the courts are “focusing on themes consistent with proposed amendments the FRCP” and suggests using arguments that are supported by these proposed amendments. Rounding out the author’s suggested resolutions is the recommendation that attorneys consider the use of Technology Assisted Review and highlighted the continued trend in the courts toward acceptance of technology for ESI review.