With so many lawyers focused on COVID-19, it would be easy to overlook the significant case law developments on electronic discovery that have transpired so far in 2020. Courts have issued any number of instructive orders on e-discovery issues ranging from metadata production and technology-assisted review to cost shifting and sanctions. Three particularly compelling topics addressed by recent cases include: (1) native productions of Excel spreadsheets without relevance redactions; (2) an ESI sanctions order that rejects judicial reliance on inherent authority in favor of Federal Rule of Civil Procedure (FRCP) 37(e); and (3) the impropriety of Federal Rule of Evidence (FRE) 502(d) non-waiver orders that result in the compelled production of privileged information.

1. Native Productions of Excel Spreadsheets without Relevance Redactions

It has been standard practice over many years for responding parties to produce relevant spreadsheets such as Excel in native format. Such a practice is essential for requesting parties who wish to analyze and understand the contents of a spreadsheet. And yet, responding parties may still resist turning over spreadsheets in native format given the presence of sensitive nonresponsive information unless they can redact such information. The Corker v. Costco Wholesale case is instructive on this issue.