Posts Tagged ‘eDiscovery’

The two blog entries below point out some slightly different views of an interesting case about employee email privacy decided in France on Dec 15, 2009. The case was: Bruno B. vs. Giraud et Migot, Cour de Cassation, Chambre Sociale, Paris, 15 Dec. 2009, No. 07-44264

http://chrisdale.wordpress.com/2010/02/22/the-extent-of-te-right-to-privacy-in-french-employee%E2%80%99s-e-mails/

http://www.hhdataprotection.com/2010/02/articles/litigation/new-french-case-removes-automatic-privacy-shield-from-employee-emails-making-them-more-amenable-to-us-discovery/

In Melendres v. Arpaio, CV-07-2513-PHX (D. Ariz. February 11, 2010) (UNPUBLISHED),  U.S. District Court Judge G. Murray Snow granted plaintiffs’ motion for sanctions and ruled that the Maricopa County Sheriff’s Office (”MCSO”) failed to issue a timely litigation hold resulting in the destruction of relevant documents, including e-mails.

In discovery, plaintiffs learned the MCSO shredded relevant documents (i.e., stat sheets) and deleted e-mails.  In addition, not a single deponent was aware of their obligation to preserve evidence.

As expected the archiving functionality in Exchange 2010 created quite a bit of a buzz with people and most have been wondering how in reality the archiving functionality stacks up against traditional archiving products like Mimosa NearPoint.   Microsoft positions Exchange 2010 archiving at the moment as a Personal Archive and suggests customers who have a strict need for compliance to look at business archiving solutions under which they classify Mimosa NearPoint which offers besides email archiving, advanced eDiscovery, File System Archiving and SharePoint Archiving.

An excellent description of the new Ontario Rules of Civil Procedure from the Ontario Ministry of the Attorney General which took effect on Jan 1, 2010 can be found here.

In a recent case; Accessdata Corp. v. ALSTE Tech. GMBH, 2010 WL 3184777 (D. Utah Jan. 21, 2010), the Plaintiff, an American company, sought to compel defendant’s production of documents, including information related to customer complaints and defendant’s technical support of non-customers.  Defendant objected to the interrogatories and requests for production on the grounds that they were overly broad, unduly burdensome, and seeking irrelevant information and because “disclosure of information relating to third parties’ identities would violate German law.”

There has been an ongoing argument as to the validity of concept search verses keyword search in discovery searches. The main arguments I have seen are:

1. Keyword searches tend to miss relevant documents and are under-inclusive in their search results.
2. Concept searches tend to produce too many non-responsive documents and are considered over-inclusive in their search results.

Richard Ellis, manager UK & Ireland, Iron Mountain Digital warned IT departments that ignoring the growth of e-mail data are putting business continuity at risk.

Even with the rise of new collaboration technologies, e-mail remains the blood flow of the business. The faster it flows, the faster business happens and so it is little surprise that e-mail data is growing daily – up to 30% annually according to some industry analysts.

The Cost of Collection:

Medium to large sized organizations are being driven to lower their overall litigation costs by bringing more of the eDiscovery processes in-house. To do this, organizations need to understand and proactively plan for the eDiscovery process. The most cost effective way to quickly lower eDiscovery costs are to prepare for the collection phase by putting in place an ESI archive to capture and manage those ESI silos that are most requested…Email, File System and SharePoint ESI.

In the investor related action, Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs, No. CIV. 05-9016, 2010 U.S. Dist. LEXIS 1839 (S.D.N.Y. Jan. 11, 2010) the defendants, who were connected to a hedge fund that lost money, sought sanctions against the plaintiffs for failing to preserve and produce documents, including ESI, and for submitting false declarations regarding their collection and production efforts. The Judge in this case was the Honorable Shira A. Scheindlin.

United States District Court Judge Shira A. Scheindlin issued five groundbreaking opinions in 2003 and 2004,  on the now very much known case of Zubulake v UBS Warburg.  This case is generally considered the first definitive case in the United States on a wide range of electronic discovery issues. These issues include:

• Data sampling
• The scope of the duty to preserve electronic evidence during the course of the litigation