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In Moore v. Publicis Groupe, S.A., Judge Andrew Peck for the United States District Court for the District of Southern New York gave judicial approval of computer-assisted document review processes where counsel "design[s] an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI while adhering to Rule 1 and Rule 26(b)(2)(C) proportionality."
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In U.S. v. Fricosu, the United States District Court for the District of Colorado ordered a criminal defendant to assist in executing a search warrant against herself by un-encrypting a seized laptop. -- F.Supp.2d ----, 2012 WL 182121 (D.Colo. 2012).
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On January 12, 2012, the District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law issues an opinion cautioning against the services provided by discovery service companies.
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In Yelton v. PHI, Inc., the defendant in a products liability action was sanctioned in the form of an adverse inference and an award of attorneys fees for failing to include a researcher, hired after the triggering event to conduct a simulation of the accident, in its litigation hold. No. 09-3144, 2011 WL 6100445 (E.D.La. December 7, 2011).
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In United Central Bank v. Kanan Fashions, Inc., the United States District Court for the District of Northern Illinois awarded monetary sanctions and an adverse inference against defendants who failed to preserve a computer server by "doing nothing," as the applicable litigation hold letter instructed them. No. 10 C 331, 2011 WL 4396856 (N.D.Ill. September 21, 2011).
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In Thorncreek Apartments III, LLC v. Village of Park Forest, the United States District Court for the District of Illinois held that counsel waived privilege to six inadvertently produced documents by failing to properly handle documents flagged as privileged and failing to oversee the online production process. 2011 WL 3489828 (N.D.Ill. 2011).
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On June 17, 2011, 2011, Judge Scheindlin withdrew her opinion in National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. 2011) which held that certain metadata is an integral or intrinsic part of an electronic record and where it is maintained by an agency, it is presumptively reproducible under FOIA unless the agency demonstrates it is not readily reproducible. As a reason for doing so, Judge Scheindlin cited an agreement amongst the parties as to the form and format that the disputed production would take and further stated that the "decision was not based on a full and developed record."
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In a lawsuit filed June 2, 2011 in the California Superior Court, J-M Manufacturing Company, Inc. ("JM") alleges that the law firm of McDermott Will & Emery ("MWE") breached its fiduciary duty owed to JM and committed legal malpractice by failing to sufficiently supervise the document review, and more specifically failing to adequately review documents for privilege prior to production.
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In Surowiec v. Capital Title Agency, Inc., the United States District Court for the District of Arizona held that failure to issue a timely litigation hold justified sanctions in the form of an adverse inference. --- F.Supp.2d ----, 2011 WL 1671925 (D.Ariz. 2011).
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In Micron Technology, Inc. v. Rambus, Inc., 2011 WL 1815975 (Fed. Cir. 2011) and Hynix Semiconductor Inc. v. Rambus Inc., 2011 WL 1815978 (Fed. Cir. 2011), the United States Court of Appeals for the Federal Circuit held that a memorandum prepared by the vice president outlining plans for suing Intel and DRAM manufacturers for patent infringement triggered Rambus's duty to preserve evidence.
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