Discovery

News & Analysis as of

What Has Fahlen Wrought?

The California Supreme Court's decision in Fahlen v. Sutter Central Valley Hospitals has confirmed (not created) a sea change in the relations between hospitals and their medical staffs on the one hand, and physicians on such...more

E-Discovery Neutrals – Four Questions

As electronic discovery issues permeate all kinds and sizes of litigation and arbitration, there are a minimum of four questions counsel should, and judicial officers might, consider in determining whether use of an...more

Proposed Amendments to the Federal Rules Aim to Lessen Burden of Discovery

Proposed amendments to the Federal Rules of Civil Procedure are set to take effect on December 1, 2015, with significant changes to the scope of discovery and the duty to preserve relevant evidence. The amendments are aimed...more

Heartbleed Won’t Bring Cardiac Arrest for Ediscovery

How do you stop a security professional’s heart from beating? Two words: security breach. In today’s “Internet of Everything” environment, the impact of a security breach can be felt around the world and back again…in...more

Do You Know About the Medical Malpractice Statute of Limitations in California?

Barry P. Goldberg, is called regularly about every kind of medical malpractice imaginable. Some of the first questions asked in those calls concern whether the potential claim is timely or possibly barred by the statute of...more

Florida Court Says, “No Phishing Expeditions Allowed on a Plaintiff’s Facebook Page”

While it is true that social media has become one of the main sources for discovery in personal injury litigation, the basic tenants of discovery that apply to the standard document requests, also apply to this new...more

“Are You Being Served?” If So, Your ESI Must Be Preserved!

Unlike the classic British sitcom "Are You Being Served?", as any business owner who has been on the receiving end of a threat of litigation or was served with a complaint can attest, there is nothing remotely amusing about...more

Three Good Reasons Why Even the Most Cutthroat Lawyers Should Want to Cooperate

Venturing down memory lane to when I was a first year law student with a thirst for knowledge, I’m reminded of the proverbial “Aha!” moment that struck me when all the information I’d been learning about distinct areas of law...more

The New Rule 37(e) Pushes Forward

The proposed revision of Rule 37(e), which recently cleared another hurdle in the rulemaking process, could dramatically limit the exposure companies face from spoliation claims. It may also go too far....more

Court Compels Production Of Information Exchanged Between Insurer And Reinsurer As Relevant To Construction Of Policy

In a declaratory relief action brought against the FDIC by the liability insurer for the directors and officers of a bank in receivership, the court resolved a discovery dispute that included a contested request for...more

Additional Discovery is Still Hard to Come By

GEA Process Engineering, Inc. v. Steuben Foods, Inc., IPR2014-00051, paper 17 (April 3, 2014, the Board authorized Patent Owner to file a motion for additional discovery, directed solely to the real parties in interest in the...more

Delayed Discovery Cannot Cure Defective Pre-Litigation Investigations for Proposition 65 Suits

A California appellate court recently determined that a consumer group’s failure to conduct required pre-litigation investigations of several restaurant chains’ alleged Proposition 65 violations warranted dismissal of the...more

U.S. Courts’ Evolving Approaches to Social Media E-Discovery

Courts across the United States have now made clear that discovery of social media is fair game. At the same time, courts have consistently found that litigants will not be permitted to engage in social media fishing...more

Court Orders Limited Discovery in the Form of a Random Sample (New Jersey)

McPherson v. Canon Bus. Solutions, Inc., 2014 WL 654573 (D.N.J. Feb. 20, 2014). In this putative class action case, the plaintiff alleged violations of the Fair Credit Reporting Act in the defendant’s hiring practices....more

Federal Court Ruling Raises Questions About Privileged Nature Of Certain Internal Investigations

On March 6, 2013, the United States District Court for the District of Columbia ruled that Kellogg Brown & Root Services, Inc. (“KBR”) must produce to a qui tam relator 89 documents relating to internal investigations...more

New York Court Affirms Separate Entity Ruling on Appeal

On March 11, 2014, a New York state appellate court affirmed an important decision on the “separate entity” rule that is favorable to all multinational banks that maintain a New York branch. New York’s separate entity rule...more

Is it Time To Appoint a Discovery Referee?

Last November I received the following e-mail: Since courts are so overwhelmed and setting dates for hearing is now running 6 months or longer, how does one do motions to compel further responses to interrogatories in...more

Illinois Local Sales Tax Sourcing Update: Tax Administration by Lawsuit

Previously, we advised of actions filed by the Regional Transportation Authority (RTA), the city of Chicago and Cook County against multiple companies as “respondents in discovery.” These actions all involved the proper...more

Protecting Trade Secrets From Discovery Disclosure In Florida

Recently, the Second District Court of Appeal of Florida reviewed the steps a trial court should take to protect trade secrets from disclosure in discovery. In Bright House Networks, LLC v. Cassidy, 129 So.3d 501, 2014 WL...more

Thinking About Discovery — In today’s electronic world

How do you obtain information in a lawsuit in 2014? The practice of EDiscovery involves “electronically stored information” (ESI). Ultimately, whether the data comes in an image of the document or raw data, it will be...more

The Evolving Role of the E-Discovery Special Master

Judge Richard A. Levie (Ret.) is widely respected for his ability to manage and resolve the most complex cases. As a special master, Judge Levie works with the parties to develop a case management order to move cases forward...more

How the 'Internet of Things' Will Impact eDiscovery

Big data is only going to get bigger, my friends....more

Alabama Supreme Court’s Brown Ruling Provides Guidance to Manufacturers on Safeguarding Proprietary Processes

The Alabama Supreme Court’s recent decision in Brown v. Michelin North America, Inc., (Case No. CV-11-902482), provides useful guidance to manufacturers on the precautions that should be taken to safeguard proprietary...more

Communications Between Experts Discoverable in Inter Partes Review

Given the rarity of a granted Motion for Additional Discovery, it is worth noting the circumstances of the Board’s decision in Apple Inc. v. Achates Reference Pub., Inc., IPR2013-00080; -00081 (Paper 58), wherein an exchange...more

Supreme Court’s Decision in R v. Nedelcu and its Impact on Litigation Involving Both Civil and Criminal Components

R v. Nedelcu, 2012 SCC 59, is a recent Supreme Court of Canada decision which clarifies the scope of the right against self-incrimination, protected by section 13 of the Charter. The case considers the question of whether and...more

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