Discovery

News & Analysis as of

Failure to Make A Third Party Witness Available May Result In The Testimony Being Ignored

In the Mexichem Amanco Holdings S.A. de C.V. v. Honeywell International, Inc., the Patent Owner moved for additional discovery to depose a third party witness whose declarations were relied upon by Petitioner in its Reply to...more

Parent Company Ordered to Produce Documents in Response to Request to Subsidiary Where Parent and Subsidiary Shared Servers and...

Plaintiff Dri-Steem Corporation ("Dri-Steem") sought production of documents in the possession and control of the defendant's parent company National Environmental Products, Ltd. ("National"), via its wholly-owned subsidiary...more

3 E-discovery Trends You Can't Afford to Ignore

The Federal Rules of Civil Procedure are supposed to be “construed and administered to secure the just, speedy and inexpensive determination of every action and proceeding.” Yet, as anyone who has ever been tasked with...more

Legal Alert: The Tax Court Approves the Use of Predictive Coding

On September 17, the U.S. Tax Court, in Dynamo Holdings LP v. Commissioner, 143 T.C. No. 9 (Sept. 17, 2014), held that a taxpayer could use predictive coding, over the objection of the Internal Revenue Service (IRS), to...more

Court Denies Forensic Imaging After Parties Do Not Agree to Production at Meet-and-Confer (California)

Boston Scientific Corp. v. Lee, No. 2041 U.S. Dist. LEXIS 107584 (N.D. Cal. Aug. 4, 2014). In this intellectual property case, the plaintiff corporation alleged that the defendant’s employment with another company...more

Harsh & Costly Lesson from Unilateral Use of E-Discovery Tools

As technological developments have greatly expanded the world of available information, the cost of harvesting electronically stored information (ESI) has risen exponentially. In recent years however, technology has also...more

Iowa Decision Underscores the Danger of Sharing Privileged Material with Reinsurers

Last month, a federal court in Iowa handed down a decision holding that neither work product nor attorney-client nor the common interest doctrine shield legal advice and analysis from production in discovery once it has been...more

Court Rejects Exhibit Lists and Objections That Would "Require a Judge to Shovel Through Steaming Mounds of Objections" and Orders...

As this patent infringement action headed to trial, the district court scolded both parties for their exhibit lists and, in particular, the objections to the exhibit lists. The district court explained that "Affinity has...more

Coordinate Your Discovery Methods

Often you can use more than one discovery method to get the same facts or evidence. You can take a pick-and-choose approach to your methodology, or better yet, use a coordinated approach that aims multiple discovery methods...more

Tax Court Approves Use of Predictive Coding During ESI Discovery

On September 17, 2014, the U.S. Tax Court issued its first opinion regarding the discovery of electronically stored information (ESI). In Dynamo Holdings, Ltd. vs. Commissioner, 143 T.C. No. 9 (Sept. 17, 2014), the Tax Court...more

E-discovery: May federal courts insist that litigants “Do as I say, not as I do”?

General Counsel of Acme Widget Corp. has had a trying morning. On her desk is a motion filed against Acme last night, demanding that a federal judge sanction Acme for failing to preserve what (to her at any rate) sounds...more

The Second Circuit Limits the Power of Courts to Enforce Asset Restraints and Discovery Orders Against Foreign Banks: Tiffany (NJ)...

In Tiffany (NJ) LLC v. China Merchants Bank and Gucci America, Inc. v. Bank of China, the US Second Circuit Court of Appeals issued important rulings, confirming that the limits on the exercise of US general jurisdiction, set...more

Effective Discovery Requires Effective Communication

As the Southern District of Ohio recently noted in Brown v. Tellermate Holdings Ltd., “[t]here may have been a time in the courts of this country when building stone walls in response to discovery requests, hiding both the...more

Business Court Resolves A Trio Of Discovery Issues

Three interesting discovery issues were resolved last week by Judge Bledsoe's Order in Gay v. Peoples Bank. First, can you obtain in discovery in a class action the fee arrangement between the plaintiff and his lawyers? ...more

Federal Court Blasts Hospital’s Kitchen Sink Privilege Claim

Lawyers for Chicago’s Mercy Hospital found that out Monday when a federal court ruled on their claim of peer review privilege for hundreds of documents sought by the plaintiff in a malpractice case. The court blasted the...more

ESI Discovery Best Practices, Part 5 – Collection of ESI and the custodial interview — Who do you talk to and what do you ask?

As part of my ongoing discussion about ESI collection issues, I want to spend more time on the custodial interview process, because the interview is a critical part of any defensible collection. First, you must identify...more

UGG: Default Judgment and Treble Damages Entered Against Defendant Where Defendant Failed to Participate in Discovery

Plaintiff Deckers Outdoor Corporation ("Plaintiff") alleged that Defendants Superstar International, Inc. and Sai Liu ("Defendants") produce, advertise, and sell products that infringe Plaintiff's design patents for UGG...more

Reasonableness and Proportionality Win Another Fight for Predictive Coding

On July 22, 2014, Judge Joe B. Brown issued a discovery order in Bridgestone Americas, Inc. v. Int’l Bus. Machines Corp. (Case No. 3:13-1196 M.D. Tenn.), in the plaintiff’s favor, allowing the use of predictive coding to...more

Behind the Great Firewall Of Ediscovery In Asia

When dealing with US requests for data subject to ediscovery rules in Asia, corporate counsel at multinational corporations must be on top of their game. Managing ediscovery in the United States alone presents a significant...more

Texas Supreme Court Holds Trial Court Must Have Personal Jurisdiction Over Potential Defendants Targeted by Rule 202 Pre-suit...

Rule 202 of the Texas Rules of Civil Procedure allows a Texas trial court to authorize a pre-suit deposition to investigate a potential claim before an actual lawsuit is filed. In In re John Doe a/k/a "Trooper," No. 13-0073,...more

A Wake-Up Call To Counsel Over ESI Discovery

The recent case of Brown v. Tellermate Holdings Ltd. is noteworthy for its imposition of near-terminal evidentiary sanctions, and order directing counsel and defendant to jointly pay plaintiffs’ cost of bringing motions to...more

Social Media Defies Traditional Evidence Collection and Review Techniques

Traditional e-discovery collection tools are not designed to work with social media, and manual techniques are too time consuming to be workable, as a plaintiff learned in a recent wrongful termination case, Stallings v. City...more

PTAB Threatens Sanctions for Unauthorized E-mails

Samsung Electronics Co., Ltd., et al. v. Black Hills Media, LLC - Addressing a patent owner’s unauthorized e-mail arguing for additional discovery and the petitioner’s likewise unauthorized responsive e-mail, an...more

Unmasking the anonymous online critic – first, there is the matter of jurisdiction

On Friday, the Supreme Court of Texas issued a 5-4 decision holding a plaintiff needs to establish jurisdiction over an anonymous blogger before a court will allow pre-suit discovery that would likely unmask the blogger’s...more

Lawyer's Duty to Preserve Social Media Evidence

Lawyers must take “appropriate” steps to preserve their clients’ potentially relevant and discoverable social media evidence. That is the key take-away from an ethics opinion recently issued by the Philadelphia Bar...more

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