Text Messaging as Uncharted Territory in E-Discovery



An article by Catherine A. Bernard appearing on Corporate Counsel on the law.com website.

To the extent that text messages are used by employees and retained in the ordinary course of business, they may, like email, constitute discoverable ESI.

The article states, “On the other hand, a party cannot be forced to produce ESI from sources that are “not reasonably accessible because of undue burden or cost.” The courts have provided little guidance on how the interaction of these principles should cabin requests for text message data, which rarely is retained long-term and may not even be addressed by company retention policies. But in other ESI contexts, courts have been more than willing to craft novel approaches to balance discovery rights with burden and cost concerns rather than keep the information out of court.”

Read more: http://www.law.com/corporatecounsel/PubArticleCC.jsp?id=1202622181932&Text_Messaging_as_Uncharted_Territory_in_EDiscovery#ixzz2hPsrjOsm

My Basic Plan for Document Reviews: The “Bottom Line Driven” Approach – Part Two


An article by Ralph Losey, Esq. appearing on his blog e-Discovery Team ®.

The article is part 2 in a series that focuses on a model designed to make costs for document review more predictable.  The article states, “

The most difficult part is the legal analysis to determine a budget proportional to the real merits of the case. But that is nothing new. What is the golden mean in litigation expense? How to balance just, with speedy and inexpensive?[14] The ideal proportionality question of perfect balance has preoccupied lawyers for decades. It has also preoccupied scientists, mathematicians, and artists for centuries. Unlike lawyers, they claim to have found an answer, which they call the golden mean or golden ratio:

golden_mean_rectangleIn law this is the perennial Goldilocks question. How much is too much? Too little? Just right? How much is an appropriate spend for document production? The issue is old. I have personally been dealing with this problem for over thirty-three years. What is new is applying that legal analysis to a modern-day high-volume electronic document search and review plan. Unfortunately, unlike art and math, there is no accepted golden ratio in the law, so it has to be recalculated and reargued for each case.[15]

Estimation for bottom line driven review is essentially a method for marshaling evidence to support an undue burden argument under Rule 26(b)(2)(C)”  See the refernced endnotes in the article. 

The article further goes on to discuss specific types of review that might be used to fit the parameters of the matter at hand.  The article also provides an interesting pyramid diagram regarding the various components that might be part of the document review, which we have included below:




JuriSolutions, as a provider of the types of services discussed in this article, strives to provide cost-predictability to our clients.  Ask us about our alternative pricing models, which includes options beyond hourly document review rates, such as per-doc and per-GB costs for document review services.  In addition, we work with our clients to guarantee them that we will honor the best pricing model from our offerings, at the close of the project, even if the client had chosen a different pricing option at the outset. Feel free to contact us to discuss our alternative pricing options.

Litigant Sanctioned for Severe Shortcomings in Discovery Response



An article appearing on the It-lex.org website.  The article discusses the case of, Clay v. Consol Pa. Coal Co, in which the plaintiff was granted sanctions against the defendant, including 6 additional depositions and costs.  The article quotes the opinion and states, “To put it lightly, there has been a severe shortcoming by Defendants in this action during the discovery process. Not only have Defendants’ resisted providing required information in initial disclosures and resisted previous discovery attempts by Plaintiff on an unfounded “we are not his employer” objection to discovery, but it has now come to light that Defendant did not even engage in a search for relevant electronically stored information (ESI) until April of this year—nearly ten months after this action was filed, and nearly two years after the EEOC investigation.”

Survey Shows Law Departments on More Stable Footing

corp counsel


An article by Rebekah Mintzer appearing on law.com on the Corporate Counsel webpage.


The article discusses results of a recent survey that found that for the first time since the downturn in the U.S. economy, that there are signs showing health and stability within corporate law department environments.