E-Discovery Year in Review
Wednesday, January 3, 2018
Posted by: Mary Mack
E-Discovery Year in Review
Richly cited with expert commentary, consummate blogger @RalphLosey's play by play on the "Waymo v. Uber" #ediscovery case has everything, from the Jacobs letter to ephemeral communication tools, to Rules and ethics. Waymo will be influential for what has happened already: losing credibility with the judge for not disclosing relevant material, the government sua sponte producing a document in a different proceeding, and disgruntled employees disclosing organizationally privileged communications. As with the Qualcomm case, Waymo will be a case cited for what not to do.
Federal Rule of Evidence 902 amendments went into effect on December 1, 2017.
Kelly Twigger reviews the reactions to FRE 902, allowing self-authentication of ESI. Kelly quotes Craig Ball’s must-haves for the affidavit certifying the collection:
- The corpus of data copied from the electronic device, storage medium, or file is clearly and unequivocally identified;
- The witness verifying the hash value is qualified and experienced in the calculation of a hash value;
- The tool and methodology employed to calculate the hash is known by the witness to be reliable;
- The witness attests that the hash values matched using the verified tool/methodology; and
- The hash value is disclosed (to facilitate independent verification). This last may not be an essential element, but I deem it good practice. Read more about Rule 902 here
Judge Peck sends a warning to the bar about meaningless and repetitive boilerplate responses to document requests. Judge Peck, in essence, tells counsel to RTFR (a Chris Dale acronym meaning read the F “abulous” Rules) and to update their template responses to include specific answers to requests. Unless objections observed the “requirement to state objections with specificity,” he would consider boilerplate objections as waivers to all but privilege claims.
Fischer v Forrest, 2017 U.S. Dist. LEXIS 28102 (S.D.N.Y. Feb. 28, 2017)
The US Supreme Court examined the inherent authority of the court to apply sanctions for discovery misconduct. The Court validated the court’s authority to apply a sanction for fees, but limited the amount to determine “only the portion of his fees that we would not have paid but for” the misconduct at issue, and without including amounts designed to punish.
Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (Apr. 18, 2017)
Overseas Data and the Supreme Court
With the General Data Protection Regulation about to go live in May 2018, all eyes are on the Supreme Court as they approach a SDNY Microsoft case where Microsoft does not want to turn over the data they stored in Ireland in response to a US warrant. There is a Google case pending with a similar situation, so this particular case will have a wide-range impact.
US v Microsoft, cert granted Oct 16, 2017