Data Collection

  • Justice
    Legal Updates

    Court Orders Spoliation Sanctions Requiring Defendants and Former Defense Counsel To Pay Attorneys’ Fees and Costs

    In DR Distributors LLC v. 21 Century Smoking, Inc, v. CB Distributors, Inc. and Carlos Bengos, 2021 WL 185082, No. 12 CV 50324 (1/19/2021), Judge Johnston of the Northern District of Illinois, granted Plaintiff’s motion for sanctions against Defendants and their former counsel, requiring them to, among other things, pay what was expected to exceed a million dollars of attorneys’ fees and costs to Plaintiff. The Court imposed the sanctions based on its conclusion that Defendants and their former counsel: did not take reasonable steps to preserve ESI (electronically stored information); did not conduct a reasonable investigation of their ESI; did not timely disclose ESI under 26(g); and spoliated thousands of emails and chat messages. This ruling shows that we, as legal practitioners, need to be extremely congizant of our discovery obligations.

  • Legal Updates

    PRIVACY PLEASE, DO NOT DISTURB: Proportionality and Privacy

    As you recall, in December of 2015, the amended FRCP 26(b)(1) sought to address the escalating burdens associated with data preservation and production by emphasizing proportionality and defining the scope of discovery. As the latest proportionality rulings show, Rule 26(b)(1) is having an impact on limiting the scope of discovery based on the associated expense and some state courts are even following the federal courts’ lead in enforcing proportionality. Interestingly, while expense continues to be a factor in the proportionality argument, parties’ objections on the basis of proportionality have extended to nonmonetary factors as well, including privacy. As a result, some courts are now recognizing privacy as a consideration in determining whether the discovery sought is proportional to the needs of the case.

  • Structured Data
    Technology Advantage

    The Growing Source of ESI: Structured Data and Messaging Platforms

    It takes a minute to come to terms with the definitions of "structured" and "unstructured" data. It seems logical to associate “formatting,” such as the formatting that comes with word documents (indentation, headers and footers, paragraphs, etc.) with “structure,” but the terms are used very differently when it comes to describing data. This blog will explore structured data, particularly as it pertains to the preservation, collection, processing, review and production of such data, using the Slack instant communication tool as an example.

  • Best Practices
    Technology Advantage

    Planning for a Successful Document Collection – Best Practices

    There is often a lot of discussion around the processing and review of documents in a litigation, most likely because these phases end up costing the most money and taking the most time. What is often overlooked, however, is the collection process and how that phase sets the tone for the rest of discovery, including overall case strategy, knowledge gathering and cost thresholds for the case. In this blog, I lay out some best practices that can be followed to collect data in a sound manner while keeping costs reasonable and gathering all relevant information. 

  • Purple Rain
    Legal Updates

    It’s Purple Raining Sanctions: Litigation Regarding Prince’s Estate Provides Framework for Determining When Sanctions Apply Under FRCP Rule 37(e)

    You may have read my colleague Starling Underwood’s post on two recent Second Circuit decisions discussing sanctions for spoliation. If you have not, I encourage you to read it here.  In this post, and continuing our music-themed sanction discussions, I narrow the focus to Federal Rule of Civil Procedure Rule 37(e), which is used to determine whether and what sanctions are appropriate when ESI spoliation occurs. A recent decision from the Minnesota District Court involving the estate of the artist Prince Rodgers Nelson (“Prince”), Paisley Park Enterprises, Inc. v. Boxill, provides a detailed review of the sanctions analysis under Rule 37(e), while dealing with a category of very common ESI data often at issue in litigation today –  mobile phone text messages.

  • Data Collection: Remain Calm and Turn Over Your Phone
    Technology Advantage

    Data Collection: Remain Calm and Turn Over Your Phone

    Mobile devices are an absolute necessity in our everyday life. When it comes to litigation (or potential litigation), our beloved devices are usually subject to discovery as they may contain information that is relevant to proving or disproving a case. As a result, when developing a data collection strategy, mobile devices must be considered. Mobile devices may now be as valuable as the more typical sources of information, namely personal computers and network locations, and with this newly-recognized discovery relevance comes a potential for trouble.