Increasingly, parties are accepting the use of technology as a method to control the costs of discovery for electronically stored information (ESI). Discovery rules often permit parties to stipulate procedures governing...more
Cell phones have been around for a long time, but preserving the data they contain for discovery purposes is still often overlooked or avoided due to expense and inconvenience. Two recent decisions highlight the importance of...more
Firefighters’ Ret. Sys. v. Citco Grp. Ltd., Civ. Action 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 594 (Jan. 3, 2018 M.D.La.) is a good example of plaintiffs getting too greedy, and where proportionality and reasonableness...more
In Harleysville Insurance Company v. Holding Funeral Home, Inc., et al., 2017 WL 4368617 (W.D. Va. 2017), an investigator for Nationwide, which owns Harleysville Insurance, uploaded a surveillance video of a fire scene to an...more
It has been well over a year since the 2015 amendments to the Federal Rules of Civil Procedure went into effect, and members of the judiciary are increasingly less tolerant of attorneys’ failure to conform to the new...more
Tired of hearing about metadata? Here’s one case where it made a difference.
In Singh v. Hancock Natural Res. Group, Inc., et al., 2016 U.S. Dist. LEXIS 179974 (E.D. Cal. Dec. 29, 2016), the parties had agreed to produce...more
Several years ago, we were told that technology-assisted review (TAR) was the wave of the future and, by now, manual attorney review would likely be a thing of the past. Although TAR has gained some traction, it is not yet...more
Mark Twain warned, “Do not tell fish stories where the people know you; but particularly, don’t tell them where they know the fish.” Litigants should heed this advice, as courts are proving to be less tolerant of discovery...more
John Mellencamp sang, “I fight authority, authority always wins,” but inherent authority may not carry the day anymore when it comes to e-discovery sanctions under the new rules. Federal Rule of Civil Procedure Rule 37(e) now...more
You may have learned everything you need to know in kindergarten, but perhaps sharing is overrated when it comes to a search-term hit report. A search-term hit report is generated when search terms are applied to a larger set...more
Class action lawsuits under the Fair Labor Standards Act (FLSA) involve unique discovery issues. Plaintiffs in these suits often propound burdensome discovery requests seeking login and logoff records from numerous...more
Proportionality is not limited to Einstein’s equations and banter on The Big Bang Theory. The December 2015 amendments to the Federal Rules of Civil Procedure moved proportionality from Rule 26(b)(2)(C)(iii), which required a...more
For years, companies have battled different sanction standards for the failure to preserve documents. This led to over-preservation, where, to avoid accusations of “negligent” failure, companies preserved every shred of...more
3/2/2016
/ Adverse Inference Instructions ,
Corporate Counsel ,
Discovery ,
Duty to Preserve ,
Electronically Stored Information ,
Federal Rules of Civil Procedure ,
FRCP 37(e) ,
Sanctions ,
Securities and Exchange Commission (SEC) ,
Spoliation ,
Young Lawyers
Courts continue to view “discovery on discovery” - or discovery requests seeking information related to counsel’s attempts to preserve, collect and search data - with skepticism. See Banks v. St. Francis Health Ctr., Inc.,...more
We have been talking about them for months, but today is the day the amendments to the Federal Rules of Civil Procedure (FRCP) go into effect. The changes should have a significant impact on the scope, speed and specificity...more
Often in litigation, parties faced with overbroad discovery requests and large amounts of data are tempted to produce everything that hits on search terms to the other side without looking at it, or after performing minimal...more
The Federal Rules of Civil Procedure state that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1) (emphasis added). In electronic...more
In the past few years, a number of courts have issued standing orders or have issued guidelines or forms to govern the production of electronically stored information (ESI). These orders and forms can be found on the courts’...more
The Judicial Conference Committee recently approved changes to Federal Rule of Civil Procedure 37(e) addressing preservation and sanctions and setting forth clearer and more reasonable preservation standards than those...more