![]() However, this does not mean that the requesting party’s search terms used to pre-cull data will carry into each phase of review. The decision signals to litigators that pre-culling data sets before using TAR is an accepted practice that can significantly cut down eDiscovery costs while still maintaining the integrity of the responsive data set. The court held again that responsiveness review was up to defendant and plaintiff could not dictate the TAR process. Plaintiff disagreed and argued that defendant was restricted to using their search terms and needed to produce all relevant and non-privileged documents from that initial search or follow their protocol. After pre-culling the data set with these terms, defendant wanted to use TAR for their relevance search. The court let plaintiff offer search terms but left responsiveness determination to defendant. Plaintiff wanted more sophisticated methods for the initial data set and the court agreed, ordering defendant to use a vendor. Many emails were at issue, and the parties disagreed about appropriate eDiscovery methods. Sep 3, 2020)Ī main issue of this case was when is pre-culling data sets proper? The Livingston case had several discrimination claims concerning how a fire department treated women during their application process. Future courts may take this decision as caution of potential downfalls when allowing requesting parties to dictate eDiscovery processes. Another key point for litigators to remember is that courts can be unpredictable, especially when discretion is involved. While it is unconventional for a court to let a party dictate the eDiscovery process, the judge in Lawson granted over $750,000 in costs, which was then upheld by the District Court. Because of this, the court held that the ESI/TAR process became disproportionate to the needs of the case.Ī major takeaway is that even though cost shifting is not common, it can still occur when the proportionality factors weigh in favor of the responding party – like making repeated attempts with low results and failure to narrow discovery requests. Plaintiff failed to narrow the initial searches and pushed for a TAR review, knowing it would raise expenses and likely not yield anything significantly valuable. While cost-shifting decisions are rare in this area, since the party responding to a discovery request generally bears the expense, the Lawson court deemed it appropriate. The court allowed this but warned it might shift costs, which it did after defendant filed a motion seeking that relief. Defendant objected, arguing that it would not be fruitful and would add unnecessary expense. After requesting a multitude of ESI related to the non-compete and having little success with traditional eDiscovery methods, plaintiff wanted defendant to use TAR methods. Although not the norm, the plaintiff was given approval by the court to define the search terms and custodians for the defendant as long as these searches were targeted with high responsive rates. ![]() The dispute in Lawson centered on alleged violation of a non-compete agreement. June 18, 2020)Ī central issue was whether cost shifting under FRCP 26(c)(1)(B) was appropriate. Courts are continuing to clarify what is protected by privacy rights and what is deemed discoverable under new and ever-changing privacy lawsīelow are five of the top eDiscovery cases from 2020: Lawson v.The courts are still clarifying how TAR can be applied.Courts are demanding parties have appropriate evidence when making or defending a proportionality claim. ![]() Courts are continuing to address when cost shifting is appropriate and how much to award.With each decision, legal practitioners glean more insight into how courts will handle these issues in future cases and tips for polishing their eDiscovery practices. ![]() Spanning from Rule 45 to cost shifting and more, the courts tackled several eDiscovery obstacles. As with past years, eDiscovery was a hot topic in case law. ![]()
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