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James H.S. Levine and Douglas Herrmann of Pepper Hamilton. James H.S. Levine and Douglas Herrmann of Pepper Hamilton.

Over the past 25 years, the emergence of electronic communications has dramatically altered the landscape of discovery. As new technologies develop and become more prevalent, the scope of what is considered appropriate or necessary in e-discovery continues to evolve. Parties can no longer rest on their discovery laurels after searching custodial emails and computers. SharePoint, Dropbox, Snapchat, WhatsApp and a bevy of other programs and mobile apps provide a fertile ground for disputes over the appropriate scope of a party’s document collection and review. In a recent transcript ruling, In re Appraisal of Kate Spade & Co., C.A. No. 2017-0714-AGB (June 21, 2018), Chancellor Andre G. Bouchard postulated whether the time has come for parties to proactively collect and search one of the most frequently used (but seldom searched) methods of electronic communications—text messages.

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