Philip Favro, Driven: New Federal Cases Spotlight 2021’s Key Trends in E-discovery

Extract from Philip Favro’s article “New Federal Cases Spotlight 2021’s Key Trends in E-discovery”

Recent case law continues to reflect key trends in e-discovery, ranging from the propriety of forensic examinations to ESI spoliation. While an order requiring a forensic collection of a party’s devices has generally been a disfavored remedy, courts now seem more willing to consider this as an option to prevent spoliation of ESI.

Regarding ESI spoliation cases, courts have recently emphasized two additional issues. First, parties who preserve lesser forms of ESI like screenshots that do not adequately capture metadata may face severe procedural and evidentiary consequences. Second, counsel have an ethical obligation to inform the court and adversaries regarding ESI preservation failings.

Forensic Examinations of Electronic Devices
Measured Wealth Private Client Group v. Foster (S.D. Fla. Mar. 31, 2021) is one of several recent cases in which courts have ordered the appointment of a forensic expert to create images of smartphones and other client devices. In Measured Wealth, the defendant failed to produce relevant iMessages and SMS text messages. In response, the plaintiff sought the appointment of a forensic expert to image the defendant’s phone and thereby ensure the relevant messages were preserved and produced.

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