Because You Need to Know: Monthly News Round-Up for January 2020

A monthly round-up of industry news stories, useful publications, and notable cases of which you should be aware from the preceding month

Welcome to “Because You Need to Know,” XDD’s monthly news round-up.  In these posts, we gather together interesting articles, noteworthy cases, new publications, and XDD materials from the preceding month.  This post gathers items of interest from January 2020.

Industry News Stories

Interesting topics in the news from January include forensic access to iPhones, judicial concern about ephemeral messaging, and GDPR-based discovery objections:

• Forensic Access to iPhones
  • The Justice Department is demanding that Apple make it easier to unlock suspects’ iPhones, but experts say it can do that without Apple’s cooperation. Here’s how.
  • Exclusive: Apple dropped plan for encrypting backups after FBI complained – sources

• Judicial Concern about Ephemeral Messaging
  • Federal Judges Worried Most About Ephemeral Messages’ Effect on E-Discovery

• GDPR-Based Discovery Objections
  • GDPR-Based Objections to U.S. Discovery Requests: 2019 Year in Review
  • EU Privacy Argument Rejected in Battle to Identify Mercedes-Benz Document Custodians

Notable Cases

New eDiscovery cases discussed in January include:

• Court Orders Defendants to Produce Laptop for Forensic Examination – Again
• Judge Won’t Impose New E-Discovery Methods in Mercedes-Benz Emissions Litigation
• Court Orders Defendants to Produce All ESI in Native Format
• The Case of CrossFit’s Big Win Against Discovery Violations
• New York Court Issues Sanctions For Overuse of “Attorneys’ Eyes Only” Designations
• Court Rules Defendant’s Production Need Not Be Lost in Translation
• First Department Protective of High-Frequency Trading Algorithm: Considerations in Handling Discovery Requests for Propriety Code, Software, and Algorithms

Useful Publications

New industry publications released in January include:

• The Sedona Conference Commentary on Rule 45 Subpoenas to Non-Parties, Second Edition, Public Comment Version

XDD Materials

In January, XDD published four new blog articles, a new practice guide, and a new educational webinar:

• Blog Articles
  • Because You Need to Know: 2019 Year-in-Review Series:
    • Because You Need to Know: 2019 Year-in-Review, Part 1
    • Because You Need to Know: 2019 Year-in-Review, Part 2
    • Because You Need to Know: 2019 Year-in-Review, Part 3
    • Because You Need to Know: 2019 Year-in-Review, Part 4

• Practice Guide
  • The Final Countdown: Production Fundamentals – The final thing eDiscovery practitioners must be able to do during discovery is to produce ESI effectively. How materials are produced affects how long they take to prepare and how easily they can be searched, reviewed, and used later in depositions and at trial.  Negotiating production format, including details like whether and what metadata will be provided, can both ensure maximum usability of what you receive and preempt disputes over what you produce and how you produce it.  In this free, twenty-six page practice guide, Director of Education Matthew Verga, JD, reviews the fundamentals practitioners need to know about production, including: primary available production formats; load files, metadata, redactions, and endorsements; rules and cases on who gets to choose format; production preparation processes; and, quality control and logging processes.

• Educational Webinar
  • When the Bough Breaks: ESI Spoliation Sanctions – Among Federal Rules of Civil Procedure revised in December 2015, was Rule 37, which governs discovery failures like ESI spoliation and the associated sanctions.  The amended version of this rule included three significant changes from the version that preceded it, in the hopes of producing greater consistency and predictability. In the four years since this amendment became effective, the amendment has achieved that goal, to some extent, but it has also created new areas of ambiguity and conflict.  For example, what are “reasonable steps to preserve”?  What is a sufficient basis for a finding of “intent to deprive,” and who makes the call?  What curative measures and sanctions should be used when?  Can courts still act under their inherent authority as well?  In this free, one-hour educational webinar, XDD Director of Education Mathew Verga, JD, reviews an assortment of cases from the past four years to explore the answers to those questions and more.

As always, we welcome your input regarding future topics for our webinars, articles, and white papers.  Share your interests with us here.