Sometimes, an argument or position may seem so self-evident or apparent that parties proceed on the assumption that it is correct without ever actually litigating the issue. Should a party decide to contest the issue,...more
At this moment, communication is more instantaneous and readily available than at any other point in recorded history, and "recorded history" grows exponentially with each passing year. Across the globe, we collectively...more
Fed. R. Civ. 26(b)(3)(A) protects from discovery documents and tangible things that are prepared in anticipation of litigation or for trial. Litigants asserting work product protection must (if called upon to do so) identify...more
With the evolution of technology, electronic communications -- particularly text messages -- can often provide a treasure trove of evidence. While requests for email communications and collections from hard drives and...more
Even before the COVID-19 Pandemic in 2020, collaboration app (e.g. Slack) usage was on the rise for internal enterprise communications, with the market share increasing from around seven billion U.S. dollars in 2015 to nearly...more
Parties in today’s complex litigation world, and their counsel, need no reminder of the ubiquity of electronic discovery and the tremendous expense it occasions. Even before 2006, when “electronically stored information”...more
The Federal Rules of Civil Procedure have several important provisions about production format. Rule 26 requires the parties to meet and confer about form of production in connection with the discovery plan. Rule 34 addresses...more
While the attorney-client privilege only protects confidential communications between an attorney and client that are for the purpose of giving or receiving legal advice, the work product doctrine, as codified in Fed. R. Civ....more
In eDiscovery, look before you leap! You have filed a lawsuit and you are set for a “meet & greet” conference with opposing counsel(s) to review and agree on discovery. What should you expect from opposing counsel and their...more
Utah adopted a care-review privilege “to improve medical care by allowing health-care personnel to reduce morbidity or mortality and to provide information to evaluate and improve hospital and health care.” In January, the...more
Last week's Privilege Point explained that on its face the federal work product rule (and most states' parallel rules) provide heightened opinion work product protection to any client representative's opinions -- not just...more
Herding Warrior Cats - Federal Rules were last updated in 2016 and the changes were thought to be significant. Welcomed by some and scorned by others, those changes are still being evaluated and applied by judges across...more
You are defending your client, a company engaged in complex scientific or technical work. As you head to trial, you have a tough decision to make. The client has employees and consultants with the knowledge and expertise to...more
Preserving Evidence: •“The duty to preserve evidence begins when litigation is ‘pending or reasonably foreseeable.’” Micron Tech., Inc. v. Rambus, Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011) •“It is, of course, not...more
This case presents an example of a district court’s use of the “proportionality” requirement of Rule 26 to limit overbroad discovery. On March 9, 2017, Magistrate Judge Barbara L. Major of the District Court for the Southern...more
Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2016 WL 7208753 (W.D.N.Y. Dec. 13, 2016) - In this case, pending before the Court was a motion by Armstrong Pump Inc. (“Armstrong”) to compel formal production of certain...more
Section 220(d) of the Delaware General Corporation Law (DGCL) permits a director to inspect a company's books and records "for a purpose reasonably related to the director's position as a director." It is well settled under...more