A year-end round-up of the biggest industry news stories, most useful publications, and most notable cases of which you should be aware from 2018
In “Because You Need to Know What You Need to Know,” we reviewed the year in our educational program and previewed the topics for this series. In “Data Privacy Developments,” we reviewed the first of our two most frequent 2018 news topics. In “Challenging Source Developments,” we reviewed the second. In this final Part, we review cases and publications.
In addition to all of the industry news items on which we have already touched, 2018 brought the usual collection of notable cases. In particular this year, there were interesting cases on spoliation, proportionality, keyword searches, and TAR. Below we review a sampling of the most interesting cases from those four topical areas. (Additional noteworthy cases on social media and mobile device issues were covered in the last Part.)
- Klipsch Group, Inc. v. ePRO E-Commerce Ltd., Case No. 16-3637 (2d Cir. Jan. 25, 2018)
- In this case, the Second Circuit approved a $2.7 million discovery sanction in a case with a value of around $20,000, over the Defendant’s objections that such a sanction was “impermissibly punitive, primarily because they are disproportionate to the likely value of the case.” The Second Circuit also pointed out that the “the sanctions were imposed under the court’s inherent power to manage its own affairs” rather than under FRCP 37.
- Travelers Prop. Cas. Ins. Co. of Am. v. Mountaineer Gas Co., No. 2:15-cv-0959 (S.D.W. Va. Mar. 16, 2018)
- In this case, one party tried to raise spoliation as an issue more than four years after the underlying incident and more than six months after the end of discovery, shortly before the start of trial. Since the issue had never been raised during discovery and no motion to compel had been filed, the Court denied the motion as untimely filed. The court opined that it would be suspicious of “any spoliation motion raised on the eve of trial” where the facts had been known for years.
- Nece v. Quicken Loans, Inc., No. 16-cv-2605-T-23CPT (M.D. Fla. Feb. 27, 2018)
- This case involved a new request for broad, additional discovery after substantial discovery had already been completed. The responding party argued using specifics that it was not proportional, and the Court denied the additional discovery as not proportional, in part due to the low value of the matter relative to the costs already incurred and the additional costs that would be required.
Keyword Search Cases
- City of Rockford v. Mallinckrodt ARD Inc., No. 17 CV 50107, No. 18 CV 379 (N.D. Ill. Aug. 7, 2018)
- In this case, the Court directed the sampling of the null set (at a confidence level of 95% and a margin of error of +/-2%) for the validation of a search-based process rather than a TAR process:
- “Just as it is used in TAR, a random sample of the null set provides validation and quality assurance of the document production when performing key word searches. Magistrate Judge Andrew Peck made this point nearly a decade ago. See William A. Gross Constr. Assocs., 256 F.R.D. at 135-6 (citing Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 262 (D. Md. 2008)); In re Seroquel Products Liability Litig., 244 F.R.D. 650, 662 (M.D. Fla. 2007) (requiring quality assurance).” [emphasis added]
This year also saw the release of several new reference publications that may be of aid to eDiscovery practitioners:
- Final Versions from Sedona
- Public Comment Versions from Sedona
- Other Publications of Note
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