Evidence Discovery

News & Analysis as of

Is it worth to pursue my case?

When you are engaged in a dispute you need to lodge a case in order to preserve your rights. However, is it worth even pursuing your case? In other words, do you have a good enough case that justifies paying court and...more

Going the Extra Mile(s)

Have you ever had one of those days when you just knew that things wouldn’t go as planned? You just knew when you woke up that morning that the universe wasn’t properly aligned? Dallas to Houston is a long last minute...more

SEC Adopts Amendments Updating its Rules of Practice for Administrative Proceedings

On July 13, 2016, the SEC announced its adoption of several amendments that update the SEC’s rules of practice governing its administrative proceedings. ...more

New Amendments to SEC's Rules of Practice in Administrative Proceedings

On July 13, 2016, the U.S. Securities and Exchange Commission (SEC) adopted several amendments to its Rules of Practice regarding administrative proceedings. The amendments address, among other things, the timing of...more

SEC Adopts Amendments to Rules Governing Its Administrative Proceedings

On July 13, 2016, the SEC announced that it will adopt certain amendments to its rules of practice governing administrative proceedings. Faced with criticism from practitioners and the media regarding a perceived “home field...more

Court throws out MOL evidence due to late disclosure, notice in OHSA prosecution

An Ontario judge has thrown out laser scan evidence due to the Ontario Ministry of Labour’s late disclosure and late notice to defence counsel that the MOL intended to present that evidence in court....more

Excluded Evidence: Is Your Proffer Sufficient To Preserve The Error?

Just because you know what your excluded evidence would have shown does not mean that the trial court knows and, as importantly for appellate purposes, that the appellate court can glean from the record the substance of the...more

California Appeals Court Rules Industry Custom & Practice May Be Admissible in Strict Products Liability Cases

In most product liability lawsuits, the plaintiff will sue under theories of negligence and strict liability. In such cases, the plaintiff may allege that the product’s manufacturer was negligent or that the product was...more

Post-Tyson Foods, Defendants Should Take the Offensive in Discovery Sampling

Following the Supreme Court’s ruling in Tyson Foods and in light of the greater emphasis on proportionality in the amended Federal Rules of Civil Procedure, defendants can expect to see an increase in the use of sampling in...more

Non-Party Document Discovery in Arbitration: Does It Exist?

Limited discovery (and the associated cost savings) is often touted as one of the benefits of arbitration over traditional litigation. Parties are generally confident that even the scaled-back discovery devices available in...more

Before You Push Play – Important Considerations When Using Videotaped Depositions at Trial

Videotaped depositions can be an effective trial tool. When using video at trial, however, attorneys must remain mindful of the court record. Often, especially for long excerpts, court reporters at trial do not see the need...more

Looking to Gather Evidence in the US? Here's How to Get it Done.

It’s an often overlooked fact that non-US litigants can use the United States’ broad discovery regime to gather evidence for non-US proceedings. For foreign applicants, US discovery laws essentially create a way to obtain...more

You Can’t Delete and You Can’t “Hide” (New York)

Thurmond v. Bowman, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016) - In this Fair Housing Act case, the defendants motioned for sanctions against the plaintiff for deleting Facebook posts. The plaintiff argued that the posts...more

Depositions in Paris

Taking depositions in Paris sounds like a glamorous time, until you read the fine print, that is. Your head likely will be spinning so much that you may as well be reading French. Unless, of course, you are fluent in...more

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

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

To Speak or Not to Speak: The “Personal Knowledge” Requirement of a Corporate Representative

Federal Rule of Civil Procedure 30(b)(6) permits a corporate representative to testify during deposition about matters within the corporation’s knowledge. This testimony does not require the corporate representative to have...more

Testing for Junk Science in the Discovery Process

What is the “Daubert” standard supposed to test? Daubert v Merrill Dow Pharmaceuticals, 509 US 579 (1993). Daubert and the Federal Rule of Evidence 702 are intended to allow the court to act as a gatekeeper in keeping...more

Google Searches & Jury Selection: What Role Should Social Media Have in Voir Dire?

We have written previously about the role of traditional discovery roles in “newer” platforms, and how social media content can be discoverable and used in litigation. What about using information from social media in jury...more

Court Emphasizes Proportionality under Amended Rule 26(b)(1) (New York)

Henry v. Morgan’s Hotel Group, 2016 WL 303114 (S.D.N.Y. Jan. 25, 2016) - In this discrimination case, the court held that third-party subpoenas violated the Federal Rules of Civil Procedure, particularly Fed. R. Civ. P....more

The E-Discovery Digest - February 2016

This is the third edition of The E-Discovery Digest, a periodic publication on notable decisions relating to key discovery topics. It is designed to keep clients up to date on the evolving state of the law regarding discovery...more

2015 Federal Rules of Civil Procedure Amendments: A Powerful Discovery Tool

The amended rules aid in controlling the scope of discovery and managing its risks. Two months have passed since the effective date of the 2015 amendments to the Federal Rules of Civil Procedure, which are applicable to...more

Is Discovery of Private Facebook Postings On Equal Footing With General Discovery Principles?

Are private Facebook postings entitled to more stringent protections from civil discovery? A significant string of New York Appellate Division decisions seemed to suggest that they are. But a divided panel in Forman v....more

Amendments to FRCP 26(b) Put Significant Emphasis on Proportionality

Revisions to several key provisions of the Federal Rules of Civil Procedure took effect on December 1, 2015, and will have a significant impact on discovery procedure and practice in federal court. The aim of these revisions...more

Rule 26: What’s New, What’s Old, and What Still Needs to be Litigated

The amendments to Rules 26(b)(1) and 26(b)(2)(C) of the Federal Rules of Civil Procedure have been in effect for almost two months now. They are expected to change the way lawyers manage discovery and the way courts resolve...more

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