February 8, 2021
Discovery issues associated with Slack data have typically focused on responding parties. However, a recent court order rejecting production of Slack communications should be cause for concern among requesting parties. In Laub v. Horbaczewski, the court held that relevant Slack messages were not reasonably accessible and beyond the responding party’s possession, custody, or control. The holding from Laub—which lacks supporting analysis, pertinent legal authority, and a fulsome understanding of the Slack “Standard Export” process—could be problematic on multiple levels for requesting parties if followed by other courts on Slack discovery issues.
February 2, 2021
Courts have decried for years a general lack of understanding and awareness regarding electronic discovery among lawyers. On January 19, 2021, U.S. District Judge Iain Johnston took his concerns on eDiscovery competence to a whole new level. In DR Distributors, LLC v. 21 Century Smoking, Inc. (2021 WL 185082), Judge Johnston published a 256-page sanctions order that specifically reproved defendants’ counsel for failing to take even the most basic steps to preserve relevant information. In doing so, DR Distributors offers what is tantamount to a 101 course for lawyers on eDiscovery, particularly regarding the need to keep relevant information in litigation and the consequences for counsel who fail to help clients do so.
January 5, 2021
With the New Year upon us, it is worth looking back at some of the key eDiscovery cases from 2020 and examining the lessons they offer going forward in 2021.
December 16, 2020
A new case has brought into the spotlight the risks responding parties face when entering into ESI protocols with detailed disclosure obligations regarding technology-assisted review (“TAR”). In In re Valsartan, Losartan, and Irbesartan Products Liability Litigation (D.N.J. Dec. 2, 2020), the court refused to approve a responding party’s proposed TAR process and insisted that the design and execution of a TAR workflow required “an unprecedented degree of transparency” between the responding and requesting parties.
November 23, 2020
We are at the five-year mark of rules changes designed to emphasize proportionality in federal civil discovery practice. Since December 1, 2015, many courts have examined the six proportionality factors memorialized in Federal Rule of Civil Procedure 26(b)(1) to measure the appropriateness of discovery. Of those factors, cost—the expense and time required to comply with a discovery response—remains the most significant in terms of determining whether a responding party must comply with a disputed discovery request.