Discovery

News & Analysis as of

Key Lessons From the Recent Precedential Order by Federal Circuit – Jurisdiction, Mandamus, and Privilege

On November 17, 2016, the United States Court of Appeals for the Federal Circuit published a precedential order denying a petition for a writ of mandamus to overturn a district court’s determination. In In re: Rearden LLC,...more

E-Discovery — Setting standards, not cover

The Sedona Conference has a slogan: “Moving the law forward in a reasoned and just way”. That slogan is exactly the way I have described this impressive organization and what do....more

Recipient Of Arbitration Award In Reinsurance Dispute Permitted Discovery Of Funds Withheld Account

Plaintiffs secured an interim arbitration award in the amount of $7.8 million, plus interest, in what the court described as a complex insurance/reinsurance program. Seeking to collect on the award, plaintiffs served a...more

The Peculiar “Personnel-ity” of California Personnel File Inspection Laws

Seyfarth Synopsis: Within the last few years, the California Legislature has amended laws related to an employee’s right to inspect personnel records, intending to ensure employees have access to those records. Since then,...more

USPTO's New Trademark Trial and Appeal Board Rules Take Effect Soon

Next month, the procedural rules governing trademark registration disputes are changing. They present new strategic considerations for brand owners protecting their trademark rights. The Trademark Trial and Appeal Board...more

Finding Categorical Privilege Log to Be Inadequate, Court Orders Plaintiff to Provide a Metadata Log: eDiscovery Case Law

In Companion Property and Casualty Insurance Company v. U.S. Bank N.A., No. 15-01300 (D. S.C., Nov. 3, 2016), South Carolina District Judge J. Michelle Childs determined that the plaintiff’s categorical Privilege Log was...more

Live! From the ACI Drug and Medical Device Litigation Conference

I’m blogging from the American Conference Institute’s Drug and Medical Device session on International Mass Tort Litigation: Strategies for Handling the Increasing Interplay Between Domestic and Global Products Liability...more

Divergent Views on Class Discovery

In two recent cases, California and Florida district courts reached divergent views on whether to permit wide-ranging class discovery prior to a certification decision. Interestingly, both decisions involved Ocwen companies....more

Stop the Music: $25 Million Verdict Intact Despite Party’s Intentional Spoliation of Evidence

The court entered final judgment, upholding the jury’s findings and denying the defendant’s motion for a new trial, finding that harsher sanctions for the plaintiff’s intentional spoliation of material evidence were not...more

Sanctions for Failure to Conduct a Reasonable Inquiry Into Factual/Legal Basis for Discovery Responses

Recently in Rodman v. Safeway, Inc., 2016 WL ­­­5791210 (N.D. Cal. Oct. 4, 2016), U.S. District Judge Jon S. Tigar imposed monetary sanctions of $688,644 because of the failure of Safeway and its counsel to conduct a...more

E-Discovery Moneyball: Brad Blickstein and the Ninth Annual Law Department Operations Survey

In Michael Lewis’s book, Moneyball, he discusses Oakland Athletics’ General Manager Billy Beane’s use of rigorous statistical analysis to find baseball players who added the most value to their team’s success for the least...more

It May Be FALL, But eDiscovery Business Confidence Is On The RISE: eDiscovery Trends

The results are in from the ACEDS and Complex Discovery Fall 2016 eDiscovery Business Confidence Survey, which was conducted last month and (as was the case for the Winter, Spring and Summer surveys) the results are published...more

New Year, New Rules: What to Know About the January 2017 TTAB Rule Updates

After a lengthy proposal and commentary process, the Trademark Trial and Appeal Board ("TTAB" or the "Board") recently published its most significant Rules of Practice update in years (see 81 Fed. Reg. 69950), with the...more

Evolution of eDiscovery Automation – Looking Back and Looking Forward: eDiscovery Trends

How has eDiscovery automation technology evolved over the years?  Where is it headed?  What is the current state of acceptance for Technology Assisted Review (TAR) within courts and within the bar?  How do the different TAR...more

2016 Amendments to the Federal Rules of Civil Procedure Take Effect

On December 1, 2016, the annual updates to the Federal Rules of Civil Procedure went into effect. The changes are relatively minor this year compared to last year, which included a significant narrowing of the scope of...more

Defendant Ordered to Produce Source Code Responsive to Agreed Upon Search Protocol: eDiscovery Case Law

In ACI Worldwide Corp. v. MasterCard Technologies, LLC et. al., No. 14-31 (D. Nebraska, Oct. 27, 2016), Nebraska Magistrate Judge F.A. Gossett granted the plaintiff’s Motion to Compel Production of the defendant’s Full Source...more

Friend (or Foe) Requests: Using Social Media In Employment Litigation

Seyfarth Synopsis: Social media is a potential goldmine of information when it comes to defending against employment lawsuits—pictures, status updates, location markers, “likes,” groups, and associated friends, all from the...more

Don’t Get Tagged – Avoiding Ethical Missteps with Social Media Investigations

As the number of people who interact on social media surpasses the one billion mark, attorneys are catching-on and turning to various platforms for investigative purposes and as informal discovery tools. We all know that the...more

Off The Record. Or Not?

In November 2007, an article titled “Off the Record,” which was co-authored by one of this article’s authors, was published in this Journal. It began by saying “[e]very good appellate lawyer knows that an appeal is...more

With No Proof of Duty to Preserve or Bad Faith, Plaintiffs’ Request for Sanctions is Denied: eDiscovery Case Law

In Reyes et. al. v. Julia Place Condominiums Homeowners Association, Inc., et. al., No. 12-2043 (E.D.L.A., Oct. 7, 2016), Louisiana District Judge Carl J. Barbier, in denying the plaintiffs’ request for sanctions, stated that...more

The Light that Shone One Dim Winter Afternoon: The Story of the First E-Discovery Day Celebration

E-Discovery Day is just around the corner, and people are already gearing up for a great lineup of webcasts with speakers from across the industry, as well as live events in various cities across the US. December 1st is the...more

Is Office 365 Alone Sufficient to Address Your eDiscovery Obligations?

Office 365 is moving mainstream eDiscovery off-premises, making Microsoft compelling and convenient for many organizations. If you’re an IT, legal, compliance or HR professional and answered “yes” to the question posed above,...more

Proposed “Patent Agent Privilege” Promises Protection For Patent Practitioners And Clients

The United States Patent and Trademark Office (“PTO”) recently proposed a patent-agent privilege that would bring needed consistency to the discovery phase of Patent Trial and Appeal Board (“PTAB”) proceedings....more

For Whom the Bell Tolls: Obligations and Risks of Third-party Witnesses under Rule 2004 Examinations.

Two recent Bankruptcy Court cases both remind and illustrate the power and risks presented by discovery of facts and documents under Bankruptcy Rule 2004, showing that it can compel third parties to provide information to...more

Businesses can refuse Subject Access Requests made for the dominant purpose of litigation

The High Court has ruled that a business that receives a Subject Access Request ("SAR") can refuse to disclose the requested information in some cases, if the dominant purpose of the SAR is litigation. This appears to mark a...more

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