Mobile devices have become frequent sources of relevant ESI in litigation. As mobile device sources have rapidly increased in number and importance, practitioners have struggled to adapt to these evolving expectations and challenges. Among those challenges is the question of what format to use for the production (or request) of mobile device data – particularly the production of mobile device messages.
Our monthly legal eDiscovery news round-up for January 2021 features procedural rule changes, GDPR enforcement news, and continuing adaptation to virtual legal proceedings, as well as noteworthy cases, useful e-discovery publications, and new XDD educational materials on cyber breach investigations and technology assisted review.
As we have noted before, cyberattacks are a growing area of concern, both inside and outside of the legal industry. With so many breaches occurring and so many breach investigations being conducted, it is important to consider the discoverability of reports and other materials generated by those investigations. As two recent cases demonstrate, it can be difficult to satisfy the requirements for work product protection of such reports.
Our monthly legal eDiscovery news round-up for December 2020 features an FRCP amendment, new privacy developments, and continued cybersecurity concerns, as well as new noteworthy cases, and a variety of new XDD educational materials.
Our monthly legal eDiscovery news round-up for November 2020 features a CRPA privacy law update, continuing adaption to COVID-19, and a discussion of two recent Sedona publications, as well as new noteworthy cases, and a variety of new XDD educational materials.
Due to the enormous volume of materials collected in some cases, parties may wish to use keyword searches followed by a TAR approach applied to the results. While search term filtering is not typically recommended by the developers of TAR tools and some parties have objected to their opponent’s use, cases have allowed parties to apply search term filtering to a document population before applying a TAR approach to the result.
Another common question regarding the use of TAR approaches in discovery is whether process transparency is required. Process transparency in this context refers to transparency regarding how the chosen TAR approach is being deployed in the case. Although there is some variation in the cases, the short answer is that process transparency is preferred but is not typically required absent some demonstrated deficiency in the process’s results.
Our monthly legal eDiscovery news round-up for October 2020 features continuing industry adaption to COVID-19 and cybersecurity concerns, as well as new noteworthy cases, new useful publications, and a variety of new XDD educational materials.
As we have just seen, process objections are supposed to be based on actual deficiencies in actual results. So, what results are deficient enough to be objectionable? We have previously discussed the academic studies showing that traditional human review is far from perfect and that technology-assisted review approaches can be at least as effective, if not more so, but that doesn’t really answer the question. How good is good enough?
We have seen in the cases where the decision of whether or not to use a TAR approach generally rests with the producing parties. Requesting parties cannot stop them from using a TAR approach if they wish to, or make them use a TAR approach if they don’t wish to. What if a requesting party has concerns, though, about the specifics of a producing party’s TAR process? When can TAR process objections be raised and what case law supports them?
Not long after da Silva Moore became the first case in which the use of TAR was judicially approved, Kleen Products became the first case in which a requesting party tried to compel a responding party to utilize a TAR approach. Since that time, numerous courts have addressed the question and have concluded that one party cannot compel another to use TAR – but a judge might direct its use in certain situations.
Our monthly legal eDiscovery news round-up for September 2020 features state rule changes, cybersecurity concerns, and continuing adaption to COVID-19, as well as new noteworthy cases, new useful publications, and a variety of new XDD educational webinars and blog articles.