Changes to Federal Rules of Civil Procedure 16(b) and 26(f) are projected to come into effect in December 2025. These changes, should they come in to effect, have been promulgated to address what proponents refer to as the...more
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
Court rulings in the past few years have codified what people working in ediscovery have known all along: Slack (and other collaboration app data) is discoverable during litigation and should be preserved the same as email as...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
In last month’s eDiscovery Blues, I wrote about how Information Governance can help legal teams prepare for the “Meet and Confer” conference set forth under the Federal Rules of Civil Procedure’s (FRCP) Rule 26(f). This...more
The concept of early case assessment (ECA) hasn’t changed with the times — the name of the game is still getting a clear, upfront picture of the issue at hand, as well as any liabilities or potential costs. But what has...more
Litigants often disagree about which method of identifying potentially responsive electronically stored information (“ESI”) is best. Specifically, the use of keywords versus technology assisted review (“TAR”)* is typically...more
With many of us now working from home in response to the COVID-19 pandemic, the reality of using videoconferencing software like Zoom, Teams, and other such platforms has become a regular part of the day-to-day. This was...more
Deciding whether mobile devices should be imaged can be difficult when it comes to eDiscovery. They contain a large variety of file-types and data intermingled with a lot of private information, which may be privileged....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
What Does Rule 26 Say about Scope and Proportionality? In 2015, when the Federal Rules of Civil Procedure were amended, the issue of scope and Rule 26 was a hot topic of discussion, mainly around the issue of costs. But...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
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
More than three years after their implementation, attorneys, courts, and litigants are still learning to navigate the new waters in Federal Rule of Civil Procedure 26. ...more
Those who thought designating social media posts as “private” would be sufficient to shield them from outsiders—including opposing parties in litigation—had better think again. On February 13, 2018, the New York Court of...more
February is the month of love. Hearts, candy, and flowers. The hint of spring harkening. The enthusiasm of a new year upon us. But for one federal court judge, the New Year brought no love. ...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
When the cost of e-discovery drives case strategy, it is time to re-evaluate priorities. The U.S. Supreme Court and Congress agreed and amended several of the Federal Rules of Civil Procedure in December 2015 in light of...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
Who is to blame for a “document dump” – a “snow storm” – an obfuscation of information? Sometimes its intentional and sometimes it is not. Everyone – both plaintiff and defendant; both teams of lawyers. Requesters are...more
Electronic discovery (a/k/a ediscovery and e-discovery) is the process of identifying, preserving, collecting, preparing, reviewing and producing electronically stored information (“ESI”) in the context of a legal or...more
In this day and age, advocacy starts with competence in ESI issues. An effective advocate must be able to assess e-discovery needs and issues, implement appropriate preservation procedures, advise clients on options for...more
On Jan. 14, 2017, the Trademark Trial and Appeal Board (TTAB) Rules of Practice were amended in what the United States Patent and Trademark Office described as an effort “to benefit the public by providing for more efficiency...more