Discovery Evidence

News & Analysis as of

Fifth DCA Reaffirms Protections Against Surprise Tactics at Trial

This past January, Florida’s Fifth District Court of Appeal found that a trial court had committed reversible error by allowing a party to argue and present previously undisclosed expert testimony and evidence to the jury at...more

KCAB Celebrates Its Golden Jubliee with Expansion to Los Angeles

For court reporters, especially those working internationally, no two days are ever the same. We could be working on anything from an arbitration about plastic surgery, a court case about corruption, a deposition about...more

Depositions in China…and Disneyland? (Updated 2017)

At Planet Depos, we often receive inquiries from clients regarding depositions in China. While China is indeed a member of the Hague Evidence Convention, depositions are not permitted there....more

Taking Depositions in Suwon, South Korea (Updated)

When taking depositions in South Korea, naturally, the first city that comes to mind will likely be Seoul. Why not? I mean, it is the capital of the Republic of Korea after all. It’s the most populous city in the entire...more

A Parallel Universe: Navigating Discovery in Concurrent Civil and Criminal Proceedings

As criminal law has expanded into almost every sector of the American economy, one byproduct is the rise of "parallel proceedings"—lawsuits that proceed concurrently in criminal and civil court based on largely the same...more

Florida Supreme Court Rejects More Rigorous Expert Testimony Standard

The federal court system and 36 states have adopted the so-called Daubert standard in place of the Frye standard when it comes to qualifying expert witnesses under the rules of evidence. In 2013, the Florida Legislature...more

Supreme Court speaks on Daubert – says not much

Last week the supreme court issued its opinion on the recommendations of the Florida Bar Rules committee regarding the new Daubert statute. The supreme court noted there are “grave concerns” that (unidentified) elements of...more

More Proposed Changes to the Federal Rules that Will Inevitably Impact Electronic Discovery and Federal Practitioners

The Federal Rules are undergoing more changes! And, effective December 1, 2017, there will be two new Federal Rules of Evidence (Rules 902[13], [14]) that will directly impact e-discovery in the federal courts. These Rule...more

Fifth Circuit Affirms Use of Special Jury Interrogatory on Whether an Accident Occurred

In defending personal injury claims, defendants frequently have to deal with jury interrogatories that infer the plaintiff actually experienced an incident that caused or contributed to his complaints, despite there being a...more

Six Tips for Taking Depositions in India

Certain countries have a few extra or different steps when it comes to scheduling depositions. Depositions in Germany can be taken only at the U.S. Consulate in Frankfurt, for example, while Honduras requires a letter...more

Does Compelling the Disclosure of Documents Allegedly Protected by Attorney-Client Privilege Constitute a Final, Appealable Order?

Last month, the Ohio Supreme Court issued a ruling in Burnham v. Cleveland Clinic, 2016-Ohio-8000, on an interesting issue – “whether an order compelling the production of documents allegedly protected by the attorney-client...more

Baring It All: Judge Orders Swingers’ Club to Produce Email Distribution List

A recent case in the Southern District of Florida serves as a reminder that even trade secrets may be subject to production to opposing counsel. Magistrate Judge Jonathan Goodman recently ordered a defendant “swingers’” club...more

Leveraging Proportionality to Set Reasonable Limits on Discovery at the Outset

Plaintiffs should not be permitted to insist on an extensive discovery wish list but rather must make some showing that their requests are proportional to the needs of the case. A district court in California recently...more

Court Affirms R&R Denying Sanctions

Andrews, J. Court affirms magistrate’s report and recommendation denying sanctions. Plaintiff objects to the magistrate’s ruling declining to award sanctions for defendant’s failure to produce IDV data. Plaintiff...more

The Ghost of Depositions Past

Deposition testimony plays a powerful role in case resolution. Themes are developed, admissions are gathered, and claims and defenses are vetted. Depositions are also a great opportunity to size up how a witness will “play”...more

Efficiency: A Discovery Philosophy, and All You Really Need to Know About Predictive Coding

The main problem with discovery is the cost. In a very small number of truly bet-the-company cases (for example, where the CEO’s emails must be produced) the greater risk can be failing to do discovery perfectly. But 99 times...more

Ohio Supreme Court Decision Permits Immediate Appeals from Discovery Orders Requiring Disclosure of Privileged Materials

In Burnham v. Cleveland Clinic Foundation, Case No. 2015-1127 the Ohio Supreme Court recently issued a decision that will make it easier to file immediate (aka interlocutory) appeals from trial court decisions requiring...more

A Framework for Applying Proportionality in E-Discovery: The Sedona Conference Principles

The principles provide a useful framework for the application of proportionality to preservation, as well as practical guidance for negotiating the scope of discovery. The Sedona Conference — a research and educational...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

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

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

Benedict’s Maritime Bulletin: Discovery and Disclosure: Civil Litigation Tools for Obtaining Evidence in the United States,...

The ever-increasing cost of civil litigation was once thought to be a unique trait of the United States civil justice system. However, the expense of civil litigation is on the rise across the globe, due in no small part to...more

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