Discovery

News & Analysis as of

Amendments to the Federal Civil Rules May Carry Unintended Consequences

The overarching goal of the recent amendments to the Federal Rules of Civil Procedure is described in the new text of Rule One – which promotes the “just, speedy, and inexpensive determination of every action and proceeding.”...more

Court Denies Discovery Of Reserve Information

On Plaintiffs’ motion to compel discovery in a bad faith action against first-party property insurer Liberty Mutual Fire Insurance Company (“Liberty Mutual”), an Alabama federal court limited, but allowed, discovery related...more

Handy-Dandy Checklist for Admissibility of Electronic Evidence

For years we’ve advocated about ediscovery for defendants – consisting mostly of material gathered from a plaintiff’s social media postings. OK, so let’s assume some degree of success. Defense-side ediscovery has generated...more

Managed Services: eDiscovery That Tastes Great and Is Less Filling

In the 1970s, one brewer introduced its brand of light beer, and a classic debate: “tastes great” vs. “less filling.” The idea behind the campaign was that the beverage was “everything you always wanted in a beer. And...more

Discovery - Oppenheimer’s Half Life Has Long Been Exceeded

As we’ve discussed previously, and as the legal profession is by now well aware, the discovery provisions of the Federal Rules of Civil Procedure were significantly amended effective December 1, 2015. One of the foundational...more

CFPB announces consent orders with debt collection law firm, two law firm partners, debt buyer

The CFPB announced that it has entered into two consent orders involving debt collection litigation practices. A debt collection law firm and two of its partners are the subject of one consent order and a debt buyer is the...more

Court Approves Use Of Predictive Coding In Large Disclosure Exercise

In Pyrrho Investments Ltd & ors v MWB Property Ltd & ors [2016] EWHC 256 (Ch) a Chancery Master has approved the use of “predictive coding” in a large disclosure process involving millions of electronically stored documents....more

To Plead or Not to Plead (the Fifth Amendment) in Civil Litigation — That is the Question

Criminal law and procedure can make even the most seasoned bankruptcy and restructuring lawyers uneasy. However, the Fifth Amendment privilege, in particular, does arise in civil matters from time to time. And there can be...more

How Not to Fire a Surgeon

It could be the Mean Girls sequel we have been anxiously awaiting: a Napa Valley surgeon alleges that his colleagues and area hospitals ruined his reputation and eliminated his practice in violation of federal antitrust...more

Everything but the Kitchen Sink: New Data Types and E-Discovery

Almost any activity we take part in creates data; it no longer resides just on email servers or your laptop or mobile phones. Data resides in the cloud, in apps, on social media, in your watch or fitness tracker. For...more

Petitioners that Rely on Deposition Testimony to Establish that a Publication Qualifies as Prior Art should be Prepared to Produce...

Routine discovery in review proceedings authorizes cross examination of affidavit testimony. 37 C.F.R. § 42.51(b)(1). If a petitioner submits affidavit testimony to prove that a publication qualifies as prior art, the...more

Court Permits Additional Discovery Relating To Collateral Estoppel Defense

At issue in this case is a reissued patent. It was obtained during the appeal in a related matter where the court had ruled for defendants (including the defendant in this case). The appellate court reversed a claim...more

Court Resolves Prosecution Bar Dispute

Thynge, C. M. J. The court resolves a dispute regarding the scope of the prosecution bar. The court orders that the disputed portion of the prosecution bar shall read as follows: - “…. . claims directed to...more

New Amendments to Florida's Proceedings Supplementary Statute Offer Clarity and Guidance for Judgment Creditors

Chapter 56 of the Florida Statutes provides the framework for judgment creditors to collect amounts owed pursuant to money judgments. Within Chapter 56, Section 56.29 governs the process by which a judgment creditor may seek...more

Court Denies Plaintiffs’ Motion to Compel the Production of Documents from Defendant’s Overseas Manufacturer (Connecticut)

Grayson v. Gen. Elec. Co., 2016 WL 1275027 (D. Conn. Apr. 1, 2016) - In this putative class action, the plaintiffs sought to compel the defendant to produce certain discovery from its overseas manufacturer and the...more

Court Compels Production of Database for Forensic Metadata Analysis (Utah)

Thorne Research v. Atlantic Pro-Nutrients, 2016 WL 1122863 (D. Utah Mar. 22, 2016) - In this patent infringement suit, the defendant filed a motion to compel, seeking a copy of a database that the plaintiffs’ inventor...more

Can Amended Federal Rule of Civil Procedure 37(E) Rewrite Plaintiffs' Spoliation Playbook?

The application of Rule 37(e) may limit spoliation litigation to issues relevant to underlying claims and defenses. A key component in plaintiffs’ playbook when facing a corporate defendant is to attempt to try cases...more

Administrative Determinations by the Supreme Court on the Report and Recommendations of the Working Group on Ethical Issues...

Last week, the New Jersey Supreme Court accepted the recommendation of a task force it established to study whether New Jersey’s civil discovery and ethics rules should take account of “metadata” in electronically-transmitted...more

The Most Overlooked Exception to Attorney-Client Privilege

In-house counsel often communicate with corporate management under the assumption that these communications are protected by the attorney-client privilege— absent some type of unusual and extraordinary circumstance, such as...more

Summary Judgment for Defendants in FCA Action: No Admissible Evidence of False Claims

How much is “enough?” Will we have enough money to retire someday? Did the Drug and Device Law College Sophomore study enough for her computer science midterm? Is there enough salt in the matzo ball soup? In the realm of...more

Case and Sanctions Dismissed in Light of New Evidence (New York)

CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (S.D.N.Y. Apr. 4, 2016) - In this trademark infringement case, the parties stipulated to dismissal, with prejudice, of all remaining claims in the case. Previously, the...more

District Court Orders Production of Settlement Agreements But Denies Request for Deposition That Would Go Beyond Four Corners of...

Plaintiffs filed a declaratory judgment action seeking a declaration that U.S. Patent No. 7,923,221 (the "Cabilly III patent"), owned by Defendants, is invalid and therefore Plaintiffs do not owe royalties with respect to...more

Claims of Lightning Strike and Power Surge Fail to Protect Against Sanctions (California)

InternMatch v. Nxtbigthing, 2016 WL 491483 (N.D. Cal. Feb. 8, 2016) - In this trademark infringement case, the plaintiff brought terminating sanctions against the defendants, accusing the defendants of intentionally...more

Xarelto’s Approval by the FDA

The controversy over Xarelto’s approval by the FDA and alleged irregularities in the conduct of the ROCKET-AF clinical trial continue to hang over the heads of Bayer and Janssen (a division of Johnson & Johnson), the...more

Friday Funnies: Exterro's E-Discovery and IG Comics and Memes Page

We here at Exterro love E-Discovery! But it helps to have a sense of humor. That's why we created our E-Discovery and Information Governance Memes and Cartoons Series. And now you can go back and relive the magic...more

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