eDiscovery Case Law: Produced ESI Doesn’t Need to be Categorized, Even When Voluminous

http://ow.ly/7JLkn

An article by Doug Austin on the eDiscovery Daily Blog.

This article focuses on a criminal case in which the defendants sought an order for the government to categorize produced electronically stored information into four groups.

The article states, "In United States v. Rubin/Chambers, Dunhill Ins. Servs., No. 09 Cr. 1058, 2011 WL 5448066 (S.D.N.Y. Nov. 4, 2011), the defendants sought to compel re-production by the Government of ESI in categorized batches relating to transactions with certain characteristics. Judge Victor Marrero of the Southern District of New York denied the defendants’ motion." A link to the case opinion is provided in the article.

The article goes on to describe the fact that in this case the data produced by the government was fully searchable, hence further categorization was not held to be required.  The article additionally states, "According to the court, there were several differences between this case and United States v. Salyer, Cr. No. S-10-0061 LKK (GGH), 2010 WL 3036444 (E.D. Cal. Aug. 2, 2010) – where the defendant’s motion for the identification of Brady material was granted. Those included that:

• The already disclosed materials were searchable;
• Defendants had access to corporate assistance;
• There was ongoing parallel civil litigation and “multiple defendants” with “overlapping discovery needs,”;
• Defendants were not incarcerated; and
• “[T]here [could] be no straight-faced claim of a ‘small defense team.’”

Therefore, the court ruled that Defendants had “failed to persuade the court than an exception to the general rule is warranted” and denied the motion."

P.S.  The holding in this particular case seems limited to criminal matters involving government investigations.  Depending on the jurisdiction, civil litigation may involve a wholly different outcome upon request for categorized ESI.