June 20, 2012 Articles

Hot Topics and Recent Court Decisions in E-Discovery

Courts are becoming increasingly progressive in dealing with ESI.

By Zachary G. Newman – June 20, 2012

From in-house servers to hard drives to flash drives to cloud computing and remote servers, there is an astounding amount of storage repositories and devices available to conduct discovery. Information is not limited to computers or backup tapes any longer as material information is now stored on smart phones, tablets, laptops, blogs, and even social media. See VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 42, 939 N.Y.S.2d 321 (N.Y. App. Div. 1st Dep’t 2012).

The plethora of available electronically stored information (ESI) can be daunting, and courts are becoming increasingly progressive in granting discovery orders revolving around electronic information and even social media. See, e.g., People v. Malcom Harris, 2012 N.Y.Slip Op. 22109, 2012 WL1381238 (N.Y. Crim. Ct. Apr. 20, 2012) (upholding the district attorney’s subpoena on the Twitter account of the defendant alleged to have participated in a protest march). These decisions and the complexities of e-discovery have caused the process to be both unpredictable in terms of costs and difficult to balance with the amounts actually in dispute in the litigation.

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