The legal landscape is constantly evolving, and staying ahead means learning from the wins, losses, and cautionary tales that emerge from courtrooms across the country. That’s where our Key Discovery Points video series comes in – offering real-world discovery lessons from two of the most trusted voices in ediscovery.
What the Courts Are Teaching Us About Discovery
Brett Burney of Nextpoint and Doug Austin of eDiscovery Today have been breaking down the latest court rulings, highlighting the strategies that work, the pitfalls to avoid, and the emerging trends that could reshape how we approach ediscovery. From judges calling out “discovery shenanigans” to groundbreaking rulings on personal devices and third-party data, these recent cases offer valuable discovery lessons for any legal professional navigating today’s complex discovery environment.
We’ve compiled five of our most recent Key Discovery Points discussions that showcase critical issues facing practitioners today. Whether you’re dealing with privilege disputes, crafting search strategies, or wrestling with BYOD policies, these insights will help you stay informed and strategic in your approach.
1. Do Your Best to Avoid Discovery Shenanigans
Some cases serve as stark reminders of what happens when discovery goes off the rails. In 777 Partners v. Leadenhall Capital, Judge Matthewman delivered a sharply worded ruling that legal professionals should take to heart. After witnessing repeated delays, disputes, and blatant disregard for court orders, the judge denied the plaintiffs’ motion to compel – but not before calling out the parties for their “discovery shenanigans.”
Brett and Doug break down this cautionary tale, exploring how poor discovery conduct can derail even legitimate requests and damage your credibility with the court. The lesson? Professionalism and adherence to court orders aren’t just good practice – they’re essential to achieving your discovery goals.
2. Navigating Clawbacks When In-House Counsel are Included
Privilege disputes can make or break a case, especially when in-house counsel are involved. The antitrust ruling in De Coster v. Amazon.com offers a master class in how courts handle these complex situations. Despite Amazon’s claims of privilege and work-product protections, the judge ordered 54 of 85 in camera-reviewed documents to be produced after careful review.
This case highlights the unique challenges that arise when in-house counsel wear multiple hats within an organization. Brett and Doug dive deeper into the nuances of privilege logs, clawback attempts, and strategic considerations that can make the difference between protecting sensitive communications and losing crucial protections.
3. Petty Finger Pointing Over Search Terms Results in Wasted Time
Getting search terms right is both an art and a science – and getting them wrong can be costly. Tremblay v. OpenAI demonstrates what happens when search strategy becomes a battlefield rather than a collaborative process. After the court denied plaintiffs’ proposed search terms for the third time, it became clear that petty disputes over methodology were overshadowing the real issues.
Brett and Doug explore the critical importance of proportionality in search strategy, the role of privilege logs in shaping discovery scope, and how to avoid the kind of unproductive finger-pointing that can derail your entire case. The discovery lessson? A well-thought-out search strategy beats aggressive tactics every time.
4. BYOD Case Law Covering Subpoenas and Employee Handbooks
The modern workplace blurs the lines between personal and professional technology use, creating new challenges for discovery practitioners. Allergan Inc. v. Revance Therapeutics, Inc. tackles one of the most pressing questions in eDiscovery Today: When can you compel searches of employee personal devices under “Bring Your Own Device” (BYOD) policies?
The court’s denial of Allergan’s motion to compel reveals important limitations in how BYOD policies translate to legal control under Rule 34(a). Even with handbook policies and BYOD agreements in place, the Special Master found that these measures didn’t give the company sufficient legal or practical authority over employee devices. Brett and Doug unpack the implications for discovery strategy and employee privacy rights.
5. Don’t Get Caught with Your Hand in the Production Cookie Jar
Privacy concerns and discovery obligations collided in the In re Meta Pixel Healthcare Litig. case, where a court made the bold decision to order production of third-party cookie data tied to sensitive health information. This groundbreaking ruling pushes the boundaries of what’s discoverable in the digital age.
Brett and Doug examine the privacy stakes, ediscovery implications, and strategic considerations that make this case a potential game-changer for class action litigation. As third-party data becomes increasingly central to business operations, understanding the discovery obligations and privacy protections surrounding this information is crucial for any modern practitioner.
★ Stay Ahead of the Curve
Every week, Brett Burney and Doug Austin break down the latest court rulings and their practical implications for your practice. Subscribe to our channel for regular updates on the cases shaping the future of ediscovery.
