Historical Highlights

Some interesting historical events

June 4, 2022

Historical ESI Highlights – Part XII – Texas v. Frisco and the “Free for All Zone” – A Preemptive Strikeout

The duty to preserve potentially responsive information generally arises before litigation begins.[1] However, the Federal Rules of Civil Procedure don’t apply at that time. The Honorable Paul W. Grimm, M. Berman, et. al., “Proportionality in the Post-Hoc Analysis of Pre-Litigation Preservation Decisions,” 37 U. Balt. L. Rev. 381, 397 (2008). When it […]
June 3, 2022

Historical ESI Highlights – Part XI – Taniguchi v. Kan Pacific Saipan

When it comes to ESI, it has been stated that: “The fuss is about money. Discovery is expensive, and electronic discovery is really expensive.”[1] The award of litigation costs will never be the stuff of cocktail party discussions.  However, in many cases, large sums of money are at issue. See, e.g., Ralph […]
June 2, 2022

Historical ESI Highlights – Part X – Dec. 2015 Amendments to the Federal Rules of Civil Procedure

As described in the initial blog in this series, the “ESI Amendments” to the Federal Rules of Civil Procedure went into effect in December 2006.  And, as Judge Facciola explained “[I]t is startling how small the changes to the 2006 rules really are. Anyone looking for a revolution in civil procedure will […]
May 31, 2022

Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation

Like many of its other publications, The Sedona Conference’s “Cooperation Proclamation” was an inflection point. The Cooperation Proclamation was published by The Sedona Conference in 2008.[1] It was followed by a number of publications, endorsed by Mancia v. Mayflower Textile Services. Co., 253 F.R.D. 354 (D. Md. Oct. 15, 2008), and by […]
May 30, 2022

Historical ESI Highlights – Part VII – The Sedona Conference and EDRM

It would be difficult to overstate the significance of The Sedona Conference and the EDRM in shaping the contours of ESI in civil litigation. Kenneth J. Withers is the Deputy Executive Director of The Sedona Conference.  In “The Sedona Conference and Its Impact on E-Discovery,” Chap. 35 in M. Berman, et al., eds., […]
May 29, 2022

Historical ESI Highlights – Part VI – Victor Stanley and Keyword Searching

The prior blog discussed the historical acceptance of technology assisted review.  However, keyword searching remains an important and useful tool.  Mark Twain wrote: “The reports of my death are greatly exaggerated….”  The same may be true of keyword searching. While there are many decisions and articles on keyword searching, one of the […]
May 28, 2022

Historical ESI Highlights – Part V – Technology Assisted Review

The Hon. Andrew Peck wrote that “[t]he first ‘technological’ innovation in document review came in 1980- when 3M® began selling Post-It Notes.”[1]  Two of Judge Peck’s later decisions led to the recognition of technology assisted review as a valid search methodology. In A Brief History of Technology Assisted Review (lawtechnologytoday.org)(Nov. 17, 2015), […]
May 27, 2022

Historical ESI Highlights – Part IV – Hopson & Fed.R.Evid. 502

Protection of privilege and work product material is costly and complex when it is buried in voluminous ESI. An opinion of the Hon. Paul W. Grimm, Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005), prompted Congress to change the law and enact Fed.R.Evid. 502. Fed.R.Civ.P. 26(b)(5) created the “clawback” […]
May 26, 2022

Historical ESI Highlights – Part III – The “Marquee E-Discovery Disaster Cases”

Zubulake was not the first e-discovery case to impose sanctions. Dan H. Willoughby, Jr., et al., “Sanctions for E-Discovery Violations: By the Numbers,” 60 Duke L.J. 789, 794 (2010). Mr. Willoughby explains that that distinction belongs to Wm. T. Thompson Co. v. Gen. Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. […]
May 25, 2022

Historical ESI Highlights – Part II – Zubulake

In Part I of this series, I quoted Judge Facciola’s observation that The Hon. Shira A. Scheindlin’s 1999 law review article sparked a revolution.  However, Judge Scheindlin’s subsequent Zubulake decisions were also pivotal.  Everyone practicing law at that time heard of them. Zubulake was a series of cases.  Zubulake v. UBS Warburg, […]
May 24, 2022

Historical ESI Highlights – Part I

This is the first in a series of blogs on historical developments in civil litigation related to electronically stored information.  The speed of change has been remarkable.  For example, The Hon. John M. Facciola recently asked: “Did anyone get the license plate of the rocket ship that hit me?”[1] The value of […]