About This Blog
Summaries, news and resources relating to eDiscovery in Delaware and beyond.
Showing 12 posts by Ian D. McCauley.
2015 saw continued interest by the Delaware courts in various aspects of eDiscovery. The courts dealt with broad issues, such as spoliation and general discovery misconduct, while also focusing on narrower issues, such as document review and redactions.
This blog will be summarizing these 6 cases in more depth throughout the rest of 2016. The 6 cases that will be summarized are below: More ›
LegalTech New York 2016 took place in early February. Several Morris James attorneys and members of IT attended the event. As usual, the event attracted some of the best legal technology minds in the country.
The trends that were observed at the 2015 conference have continued. This year’s discussions not only focused on understanding the disparate areas of law that technology affects, but also emphasized that these various areas are all interrelated and cannot be viewed in vacuum. Information governance efforts directly impacts scope of discovery and data security. Standard discovery protocols affect retention strategy and implicate security concerns. Privacy issues impact both scope of discovery and frame information governance protocols.
Other key topics discussed at the conference included: More ›
Earlier this year, proposed amendments to the Federal Rules of Civil Procedure were submitted to the United States Supreme Court for review following a years long process that began in 2010. The proposed amendments will become effective on December 1, 2015 barring any action by either the Supreme Court or Congress to modify them.
Circuit splits and a lack of uniform standards have plagued eDiscovery for some time. The proposed amendments attempt to bring uniformity to the body of eDiscovery law that has been developing since the early 2000s. The proposed amendments also seek to address litigants’ concerns that eDiscovery has in the past been used as a weapon to force settlement upon those who cannot afford to engage in the process. To that end the proposed amendments address proportionality and the scope of discovery.
These amendments will most likely eventually be adopted by various States as well. For a full discussion by the Advisory Committee on Federal Rules of Civil Procedure and a list of all of the Committee’s proposed amendments, see the March 2014 and September 2014 Reports of the Judicial Conference Committee on Rules of Practice and Procedure, available here [http://www.uscourts.gov/rules-policies/records-and-archives-rules-committees/committee-reports]. More ›
Legal Tech New York 2015 took place in early February and the Morris James eDiscovery team was lucky enough to attend for the third straight year. The general impression is that the eDiscovery focus has continued to shift away from the view that predictive coding/TAR is a panacea that will greatly reduce the costs of eDiscovery. It appears that the conversation has moved towards a variety of other methods to improve efficiency and reduce client costs. More ›
Jeff Waxman of Morris James' Bankruptcy and Creditors' Rights Group recently co-authored an article which appeared in the American Bankruptcy Institute Journal entitled "Document Preservation Strategies for Creditors in a World with Changing Discovery Rules."
Jeff and his co-author, Jennifer McClain McLemore, explore whether the proposed changes to the Federal Rules of Civil Procedure will impact the preservation duties of creditors both big and small.
In James v. National Financial LLC, C.A. 8931-VCL (Del Ch. Dec. 5,2014) the Court of Chancery outlined Delaware Counsel's discovery obligations as well as the type of sanctions that may be imposed for not complying with those obligations.
Plaintiff James moved for entry of default judgment against Defendant National after the Defendant failed to comply with a court order requiring it to produce a specific document (a previously produced spreadsheet that included more detailed information) as well as retain an IT consultant to assist with collection of that document. The Defendant was also ordered to provide an affidavit from the IT consultant attesting to how the document was collected.
No affidavit was produced. The updated spreadsheet did not have the information required by the court. National did retain an IT consultant, but, according to the court, this was a half-hearted attempt.
Vice Chancellor Laster granted James' Motion for Sanctions. In writing for the court, the Vice Chancellor stated that "National's discovery misconduct calls for serious measures. Although I believe that entry of a default judgment would be warranted on these facts, I will not grant that remedy in light of the Delaware Supreme Court's guidance about invoking the ultimate sanction and the availability of less punitive consequences." Instead, the court awarded attorneys' fees and ruled that the lack of information contained in the requested document resulted in an admission.
The Vice Chancellor took special care to discuss Delaware counsel's role in the discovery process. First, the Court reiterated that Delaware counsel was not merely there to sign papers and act as a mail drop. Delaware counsel is expected to be involved in the case. The Vice Chancellor, in citing State Line Ventures, LLC v. RBS Citizens, 2009 Del. Ch. LEXIS 233 (Del. Ch. Dec. 2, 2009), stated that "Even when forwarding counsel has been admitted pro hac vice and is taking a lead role in the case, the Court of Chancery does not recognize the role of purely 'local counsel'...our Rules make clear that the Delaware lawyer who appears in an action always remains responsible to the Court for the case and its presentation."
Second, the court emphasized Delaware counsel's role in discovery. The Vice Chancellor stated "The court expects Delaware counsel to play an active role in the discovery process, including in the collection, review and production of documents. If Delaware counsel does not directly participate in the collection, review and production of documents, then at a minimum Delaware counsel should discuss with co-counsel the court's expectations."
When read with other recent cases, it is clear that Delaware counsel should, at the very least, provide advice to co-counsel regarding the collection, review and production of documents. This case, along with other recent cases such as Chen v. Howard-Anderson and In Re ISN Software Corp., demonstrates how seriously the Court of Chancery takes the eDiscovery process and points to an emerging body of law on the subject.
According to Bloomberg BNA, the proposed amendments to the Federal Rules of Civil Procedure have been approved by the Judicial Conference of the United States and have been forwarded to the Supreme Court for consideration. Rule 37(e) has received the most attention to date, as it focuses on sanctions as well as remedies for the failure to preserve data.
These amendments promise to change the eDiscovery landscape, though debate will continue as to what degree.
A recent landmark decision in which the Court of Chancery ordered both sides to engage in predictive coding by using a mutually agreed upon vendor has been modified. The new order allows plaintiffs in the EORHB v. HOA matter to review their documents using traditional methods. They will also be allowed to choose a separate vendor than defendants. More ›
We lawyers have a tendency to confuse our terminology when discussing technology. This is especially true when discussing the technical aspects of eDiscovery.
I was inspired by the excellent Grossman-Cormack Glossary of Technology-Assisted Review which attempted to define the terminology surrounding TAR. I prepared the following short glossary of commonly used eDiscovery terms to assist our group in understanding some of jargon used by eDiscovery professionals. The terms can be found after the break. More ›
Henry Kelston of the Legal Intelligencer provides a useful summary of the amendments to the FRCP that were recently proposed by the United States Courts’ Advisory Committee on Civil Rules.
The rules would seek to create uniformity on a variety of issues including scope and proportionality of discovery, sanctions for failure to preserve discoverable information and limits on written discovery and depositions. More ›
Hello, and welcome back to the Delaware eDiscovery Report. There have been many developments recently in the world of eDiscovery, particularly in Delaware. Before providing a rundown of these new cases and guidelines, I would like to offer an introduction.
My name is Ian McCauley. I have focused my practice solely on eDiscovery for the past 5 years with an emphasis on effective project management, early data/case assessment and litigation support/legal synergies. I hope to have other voices join the conversation as we begin the blog anew.