Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of October 14-20. Here’s what’s happening.

Getting Litigation Holds Right

How attorneys communicate litigation holds to their clients carries significant consequences for their cases. Take Safelite Group., Inc. v. Lockridge, which Doug Austin writes about at eDiscovery Today. The case involved a former employee who allegedly used proprietary information from his old company to try to recruit old co-workers to his new employer.

When Safelite filed its lawsuit, that triggered a litigation hold. The defendant’s counsel told him to “retain and not destroy, delete, or throw away any documents, records or communications that dealt with the allegations in the lawsuit.” The defendant’s phone was set up to automatically delete text messages after 30 days, though. And that wasn’t discovered until months later. The plaintiffs accused the defendant of spoliation. The judge agreed and ordered sanctions.

There’s no evidence the defendant intentionally failed to preserve his text messages, and Rule 37(e) doesn’t require perfection. But, the judge wrote, the defendant was negligent because he made no effort to preserve until months later. The judge faulted the defendant’s counsel because, at first, it gave only an oral warning about preserving records. That wasn’t adequate to prevent spoliation. (A written warning was issued by his new employer weeks later.) And counsel didn’t specifically warn the defendant to turn off any auto-delete settings.

Simply communicating that a litigation hold exists isn’t enough. Counsel needs to work with custodians and other stakeholders (like IT personnel or Information Security teams) to make sure they understand exactly what types of files and documents are covered and how to preserve them, including double-checking retention policies and auto-purge settings on systems and devices. An eDiscovery consultant can point out problems that even experienced attorneys might overlook.

Supplemental Searches and Proportionality

When a party seeks additional search terms during eDiscovery, it pays to have a clear, focused request. The Sidley Blog writes about a recent case that involved alleged wage fixing. The plaintiffs asked for supplemental searches because the defendants didn’t produce relevant email strings that another entity did share. The defendants pushed back, saying the new terms were expansive, burdensome and duplicative. They estimated it would take more than 460 attorney hours to review the new documents that were uncovered by the additional search terms.

The magistrate judge didn’t totally discount the defendants’ argument about undue burden, but found the proposed searches were seeking relevant information. And the defense didn’t meet its burden to show the request for supplemental searches was improper. The supplemental searches were “narrowly tailored.” As the judge wrote, the defense can reduce its burden by using technology-assisted review (TAR) and Rule 502(d), which helps limit the potential damage of inadvertent disclosure.

But the judge denied the plaintiffs’ request for “additional targeted searches” because it didn’t specify the documents or topics involved.

One potential takeaway is that a clearly defined, reasonable request is more likely to earn a judge’s approval. Also, kudos to U.S. Magistrate Judge Kim for suggesting the use of TAR – it’s refreshing to see the technology being embraced by the courts which should promote its wider adoption in the eDiscovery context.

Other recent eDiscovery news and headlines:

• Changing the eDiscovery Burnout Blueprint: Practical Solutions to Address Failing Mental Wellness in the eDiscovery Industry (EDRM Blog)
• Episode 158: In-House Counsel in the Custodian Debate: Balancing Proportionality and Relevance (eDiscovery Assistant)
• Discovery From Former Attorney About Disputed Quid Pro Quo Offer to Opponent (EDRM Blog)

Julia Helmer; Director, Client Solutions

With more than 15 years of expertise, Julia excels at optimizing enterprise eDiscovery workflows from start to finish. With a deep understanding of how to seamlessly integrate workflows across various eDiscovery platforms, Julia creates tailored solutions for data identification, legal holds, ESI collections, and productions. By harnessing the power of Technology Assisted Review and Analytics, she delivers efficient, cost-effective results that align with best practices and budgetary constraints. Julia’s exceptional communication and customer service skills have fostered strong, lasting relationships with both clients and Project Management teams, enabling her to effectively problem-solve and drive success across numerous projects.