If you’re a current eDiscovery Assistant user, you already know the value of our proprietary Issue Tag structure applied to all of the content across the platform, and how they let you drill down into case law and rules quickly. You may also know that our content teams meet weekly to discuss the addition of new Issue Tags and whether adding them will assist on developing ediscovery issues.
Over the past two months, we’ve added five new Issue Tags based primarily on developing case law and where we felt having an Issue Tag would increase your ability to drill down to answers faster. The new Issue Tags are ESI Protocol, Wearables, Ephemeral Messaging, General Objections and Initial Disclosures. When new Issue Tags are added to the database, our team undertakes a comprehensive review of existing case law in the database to ensure the new Issue Tags are applied to any cases already in the database, as well as adding the Issue Tags to our protocol for our review of incoming cases.
So what do these new tags mean and how can you use them to find case law, rules, checklists and forms? Let’s look at each one. As always, some tags are specific to case law, while others are ubiquitous throughout eDiscovery Assistant. As part of the Issue Tagging process, our team identifies every iteration of how judges refer to an issue (think undue burden vs. proportionality for example), not just the specific language of the tag. And Issue Tags are added when there is an analysis of the issue, not just a mere mention of it so that your research leads you to real results.
- ESI Protocol. Over the last 12 months, more and more issues have arisen that have caused courts to look at the language of what the parties agreed to in their ESI protocol. Of course, not all judges or decisions refer to that agreement as an ESI protocol, so our team identified all the iterations of how judges refer to the protocol for tagging. No matter what language the court uses to describe the agreement, we apply the ESI Protocol Issue Tag where appropriate. When is this Issue Tag applied to a case? When a decision involves the analysis of the language of an ESI protocol. Simply the mention of a protocol, without any analysis, is not sufficient to warrant the Issue Tag being added. In case law, use the ESI Protocol tag to find acceptable protocols signed by your Judge, what’s generally accepted in a jurisdiction, or combine it with other Issue Tags like FRE 502(d), form of production or attorney-client privilege to drill further into issues being analyzed in the protocol at issue. As of this writing, there are 364 cases tagged with ESI Protocol in our case law database and a specific category for ESI Protocol in checklists and forms.
- Wearables. Case law covering the discovery of data from wearables — i.e. smart watch, smart ring, etc. Use this Issue Tag when you want to see case law on the issues to be considered and the factual evidence you need to get data from a party’s wearable device. Related Issue Tags for Wearables include Internet of Things, Failure to Produce, etc. There are currently 5 cases with Wearables as an Issue Tag in our case law database. They are also included in detail on the Sources of ESI checklist.
- Ephemeral Messaging. You may not even have heard of it, but ephemeral messaging is a form of digital communication available for only a limited time and is deleted. Popular ephemeral messaging apps include Snapchat, Signal, and Telegram. We added this as a tag to be a big picture concept of the various platforms that have been Issue Tagged. Snapchat is a prime example. The analysis of ephemeral messaging and party’s obligation to save it or be able to discover it is consistent across applications. Related tags include Snapchat and failure to preserve (since the data can be deleted quickly). There are currently 47 cases in our case law database discussing ephemeral messaging.
- General Objections. The 2015 change to the Federal Rules of Civil Procedure precluding parties from using general objections in their discovery responses has not gotten through to many lawyers, and the courts are now issuing rulings that a party asserting these general objections has waived its right to object. That’s a dangerous path to go down, so the addition of this Issue Tag to our database helps you get to those cases quickly to know both what you should be doing with objections in discovery responses, and what arguments to make if you find yourself in a pickle having included them. Related tags include Waiver, Attorney-Client Privilege and Failure to Produce. This has been a consistent issue in many decisions in 2021, and there are currently 924 cases in our case law database with this Issue Tag applied.
- Initial Disclosures. 2021 saw many cases in which courts issued sanctions for failure to disclose witnesses or documents in the FRCP disclosures required by Rule 26. We’ve added this Issue Tag to allow users to get to these cases faster whether you are arguing for the exclusion of a witness for failure to disclose or trying to prevent it. Related tags include Sanctions, Exclusion of Witness, Exclusion of Evidence, Failure to Produce and Waiver and you’ll want to use those to narrow your focus when conducting research as there are currently 1210 cases with the Initial Disclosures Issue Tag.
There you have our most recent additions to the Issue Tagging structure. Each Issue Tag is best used in combination with other tags, so consider the issue you are looking for at its heart, and construct an Issue Tag search that best meets it. As always, you can revise your search at any time and your previous searches are saved in your user History should you ever need to backtrack. Remember to utilize the Cite List function to organize your research as you find results and keep your eye out for our most recent updates to Case Law search coming online in the next two weeks. Need help? Use the in app chat feature to drop our team a note and we’ll help you craft the perfect search to get to your question.
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