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Total Articles: 54

New Amendment to Federal Rule Implicates eDiscovery Collection

Rule 902 of the Federal Rules of Evidence is being amended on December 1, 2017 to add two new provisions that impact the authentication of electronic evidence.

New Mexico Court Rules Employee Is Entitled To Nationwide Discovery in FMLA Case

On October 10, 2017, Judge Ritter issued the Memorandum Opinion and Order which granted a former employee’s Motion to Compel and held that the former employee was entitled to information from the company’s nationwide offices relating to other employees fired under the company’s 100% healed policy and other FMLA or ADA complaints.

Court Holds That Self-Selection Of Emails By Employee Satisfies Discovery Obligations

In Mirmina v. Genpact, LLC, Civil Action No. 3:16-CV-00614 (D. Conn. July 27, 2017), a federal court in an employment discrimination matter denied the plaintiff’s motion to compel discovery, finding that the defendant’s reliance on an employee involved in the litigation to self-select relevant documents was appropriate under the circumstances

Lack Of Prejudice Precludes Sanctions Following Automatic Deletion Of Emails

Magistrate Judge Iain D. Johnston recently held that sanctions were not warranted under Fed. R. Civ. P. 37(e) against a defendant who admitted to erroneously destroying electronically stored information (ESI). While the court did not condone the defendant’s actions (describing them as “disturbing”), it reasoned that the ESI “did not appear to be relevant” and therefore did not prejudice the plaintiff.

Court Issues Warning To The Bar Regarding Use Of “Boilerplate” Discovery Objections

In Liguria Foods, Inc. v. Griffith Laboratories, Inc., Judge Mark Bennett of the United States District Court for the Northern District of Iowa required both plaintiff and defense counsel to show cause why they should not be sanctioned for discovery abuses based on the excessive use of “boilerplate” objections to discovery requests.

California Court Compels Defendant to Re-Produce Electronically Stored Information in Format Requested by Plaintiffs

A California federal trial court has granted the plaintiffs’ motion to compel re-production of electronically stored information (“ESI”) in native format with all associated metadata, while also granting plaintiffs their “reasonable expenses” incurred, including attorneys’ fees, in making their motion.

Employer Denied Access to Employee GPS Data

A federal district court in Indiana recently denied an employer’s motion to compel discovery of employee GPS data in defense of an action brought under the Fair Labor Standards Act (FLSA). Crabtree v. Angie’s List, Inc.

Court Rejects Overly Broad Request For Forensic Imaging Of Plaintiff’s Personal Computers

An Illinois appellate court has vacated a trial court’s order compelling the forensic imaging of several personal computers used by plaintiff, applying a balancing test that takes into account both the proportionality rule and the privacy concerns implicated in the request. In Carlson v. Jerousek, 2016 IL App (2d) 151248, P4 (Ill. App. Ct. 2d Dist. 2016), defendants in a personal-injury case moved to compel discovery of “electronically retrievable information,” ultimately asking the trial court for unrestricted access to inspect plaintiff’s personal computers, including a computer leased to plaintiff by his employer.

Court Rules That Proportionality And Cooperation Are Essential In Resolving E-Discovery Disputes

Magistrate Judge R. Steven Whalen agreed with UPS that it did not have to spend six months and $120,000 to recover data stored on backup tapes that may not be relevant to the case if UPS prevails in its efforts to limit the scope of the putative class’s claims. Instead, the Court directed the parties to share information and agree upon an appropriate methodology for statistical sampling.

Lack Of Prejudice Results In Limited Sanction Against Defendant

In one of the first cases interpreting newly amended Fed. R. Civ. P. 37, F.T.C. v. DirecTV, Inc., 15-cv-01129-HSG, 2016 U.S. Dist. LEXIS 176873 (N.D. Cal. Dec. 21, 2016), Magistrate Judge Maria Elena James of the Northern District of California denied plaintiff’s motion to exclude spoliated evidence that was relied upon by defendant’s expert, reasoning that the plaintiff failed to show sufficient prejudice to warrant such a sanction. The Court, however, did order that defendant’s expert sit for a four hour deposition to cure any prejudice resulting from defendant’s failure to engage in “best practices” related to the preservation of such evidence.

Preservation Of ESI Is Still Paramount Under New Rule 37(e)

Magistrate Judge Paul M. Warner recently decided that sanctions, including attorney’s fees and costs, were appropriate as a result of evidence of a defendant’s failure to preserve relevant electronically stored information (“ESI”) after receiving a preservation letter from the plaintiff in a wrongful death action.

Cooperation Imperative In Searching Electronically Stored Information

Senior United States District Judge Terrence McVerry granted a party’s motion to compel the opposing party to meet and confer regarding search terms to apply to electronically stored information.

Court Discusses The Obligation To Preserve Text Messages Under New Rule 37(e)

In a recent decision from the Western District of North Carolina, the Court discussed the importance of preserving text messages from accidental destruction due to a loss of a party’s cell phone.

Court Sanctions Both The Defendants’ CEO And Defendants’ Counsel For Discovery Misconduct

District Judge Katherine Polk Failla imposed significant sanctions in Arrowhead Capital Finance, LTD v. Seven Arts Entertainment, Inc., 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016), following Defendants’ repeated failure to cooperate in discovery and comply with the terms of her previously issued discovery orders.

Federal Court Refuses To Compel Defendant To Produce Non-Responsive Documents That Hit On Agreed Upon Search Terms

A federal court in Texas recently refused to enforce the parties’ discovery agreement with respect to plaintiff’s request that the defendant produce all non-privileged documents responsive to search terms agreed to over email. In BancPass, Inc. v. Highway Toll Admin., LLC, 2016 U.S. Dist. LEXIS 96978 (W.D. Tex. July 26, 2016), the Court addressed a dispute between two companies that provide mechanisms for motorists to pay highway tolls while driving rental cars. In an effort to cooperate on electronic discovery in the case, BancPass and the Highway Toll Administration (“HTA”) negotiated certain search terms that the parties would use in order to locate and produce potentially responsive documents.

Marginal Discovery Disallowed Because It Was Not Proportional To The Needs Of The Case

Under a ruling issued by a federal district court in Arizona (In re Bard IVC Filters Prods. Liab. Litig., 2016 BL 306366, D. Ariz., No. MDL 15-02641-PHX DGC, 9/16/16), the new Federal Rules for discovery allowed the defendant to avoid producing electronically-stored foreign communications in multidistrict litigation over allegedly faulty medical devices.

ESI Lost After Duty To Preserve Had Been Triggered Results In Limited Sanction Under New Rule 37(e)

A federal court in Utah recently applied the newly amended Rule 37(e) and, in doing so, issued relatively limited sanctions following a finding of spoliation.

Federal Court Compels Former Executive to Respond To Extensive Discovery Requests Despite High Cost

A federal court in Pennsylvania recently ordered a former executive to respond to costly and expansive discovery requests in a case where the former executive allegedly set up a competing business in violation of his employment agreement. Although responding to the discovery was expected to be a costly endeavor, the Court in First Niagara Risk Management, Inc. v. John A. Folino (E.D. Penn. August 11, 2016) nevertheless rejected the defendant’s financial hardship argument based on the fact that he recently received $5 million for the sale of two companies to the plaintiff.

A Party May Comply With Rule 34 By Identifying Its Search Parameters As Opposed To Identifying Withheld Documents

According to a recent decision of the U.S. District Court for the District of Kansas, a party may satisfy its obligations under Rule 34 when—in response a demand for the production of documents—the party states how the party limited its search for responsive documents, but does not specifically identify the documents that have been withheld.

Court Rejects Burdensome Argument As It Relates To Litigation Holds

The importance of timely implementing a litigation hold cannot be overemphasized. In Bruner v. American Honda Motor Company, 2016 U.S. Dist. Lexis 62810 (S.D. Ala. May 12, 2016), the plaintiffs, who were involved in an accident involving a 2007 Honda Civic, sought potential e-mails related to airbags installed in Civics during a ten-year span encompassing the model year of the accident vehicle. The defendant argued that under the applicable document retention policies, any such e-mails would have been destroyed after thirty days and, therefore, no such documents existed. The defendant further asserted that it had undertaken a thorough search of its various electronic communication systems and had found no documents.

Federal Court In Washington Denies Motion To Compel Restoration Of Backup Tapes

A federal court in Washington recently denied a motion to compel the production of archived emails stored on backup tapes, rejecting the plaintiffs argument that the defendants culpability in failing to preserve the emails in a more accessible format outweighed the burden and cost to the defendant of restoration.

Unsupported And Exaggerated Assertions Regarding The Burden Of Production Will Not Persuade The Court

By now we’re all familiar with the language recently implemented in the Federal Rules of Civil Procedure, providing employers with some protection against unreasonable demands related to ESI: “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B).

Federal Court In Virginia Rejects Defendant’s Proportionality Argument

A federal court in Virginia recently granted a plaintiff’s motion to compel the defendant to search its computer systems for electronically stored information, rejecting the defendant’s argument that the requested ESI was “inaccessible” due to burden and cost and that the requested discovery was not proportional to the needs of the case. In Wagoner v. Lewis Gale Med. Ctr., LLC (W.D. Va.), the plaintiff sued defendant Lewis Gale Medical Center alleging that he was discriminated against on the basis of his disability in violation of the Americans with Disabilities Act.

May A Company “Preserve In Place” To Satisfy Its Preservation Obligations

A common question that often arises is whether to physically collect/copy a person’s e-mail account once that person is placed on a litigation hold. Rather than copy the e-mail account, many companies will simply turn off the “auto-delete” function and issue the employee a preservation notice. By doing so, the company is essentially preserving in place. Although some may question this method of preservation, it is no different than if an employee had a box of potentially relevant documents in his office and, rather than make a copy of the box, the employee was instructed to continue to hold the box in his office until further notice. In most situations, this should be sufficient to satisfy a company’s preservation obligations.

Explanation of the Legal Profession’s Remarkably Slow Adoption of Predictive Coding

Well-known predictive coding expert attorney, Maura Grossman, and her husband, noted information scientist, Gordon Cormack, recently began on article in Practical Law magazine with the assertion:

Limiting Plaintiff’s Discovery on Similarly Situated Employees Reasonable, Federal Court Finds

Limiting a plaintiff’s pretrial discovery can be the key to defending an employment discrimination lawsuit. This point was aptly demonstrated in a federal appellate court ruling approving a district court’s denial of wide-ranging discovery and its summary judgment dismissal of an employee’s discrimination suit. Kuttner v. Zaruba, No. 14-3812 (7th Cir. Apr. 14, 2016). However, Judge Richard Posner’s dissent illustrates that judges have widely differing views on the scope of pretrial discovery in discrimination lawsuits.

Conclusion to 14 Part Series on Document Culling

This is Fourteenth and Final blog in a series on two-filter document culling. (Yes, we went for and obtained a world record on longest law blog series!) Document culling is very important to successful, economical document review. Please read parts one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve and thirteen before this one.

Lawyer Sanctioned for Employee’s Misconduct

An attorney can’t be held accountable for her client’s breach of the Rules of Professional Conduct, right?

Case Example of Quick Peek Type of Production Without Full Manual Review

his is part Thirteen of the continuing series on two-filter document culling. (Yes, we are going for a world record on longest law blog series.:) Document culling is very important to successful, economical document review. Please read parts one, two, three, four, five, six, seven, eight, nine, ten, eleven and twelve before this one.

Review of the Basic Idea of Document Culling

This is part Twelve of the continuing series on two-filter document culling. (Yes, we are going for a world record on longest law blog series.:) Document culling is very important to successful, economical document review.

Kulling With or Without Robots: Second Stage Predictive Coding Culling

This is part Eleven of the continuing series on two-filter document culling. (Yes, we are going for a world record on longest law blog series.:) Document culling is very important to successful, economical document review. Please read parts one, two, three, four, five, six, seven, eight, nine and ten before this one.

Kulling With Three Kinds of Predictive Coding Ranking Methods

This is part Ten of the continuing series on two-filter document culling. This is very important to successful, economical document review. Please read parts one, two, three, four, five, six, seven, eight and nine before this one.

Kulling Time: Non-text files, concept searches, similarity searches and email domain culling

This is part Eight of the continuing series on two-filter document culling. This is very important to successful, economical document review. Please read parts one, two, three, four, five, six and seven before this one.

Culling Me Softly: File Size, File Type and Words of Warning

This is part Seven of the continuing series on two-filter document culling. This is very important to successful, economical document review. Please read parts one, two, three, four, five and six before this one.

I’d Tell You My Keywords, But Then I’d Just Have to Cull You

his is part five of the continuing series on two-filter document culling. This is very important to successful, economical document review. Please read parts one, two, three and four before this one.

To Cull a Mockingbird: the popular, but risky, “keyword” collection filter

This is part four of the continuing series on two-filter document culling. Please read part one and part two and part three first. Hopefully you will like this part four sequel better than Harper Lee’s sequel.

Federal Appeals Court in New York to Clarify When Seizures of Computers are Unconstitutional

When federal agents execute a warrant for paper documents during an investigation of a company, they generally seize only the documents in the warrant and leave the rest of the physical documents behind. Where it is not practical to search on site, the law permits them to take all the records and review them later. However, even in that case, once the agents have conducted the search, they return the documents that the warrant does not cover. However, this does not necessarily apply to a computer or other digital media because the agents cannot cut off a piece of a physical hard drive. Thus, agents either keep the entire physical hard drive or make a perfect copy of all its information.

The Culling Fields: some software is better than others at efficient document culling

This is part three of the continuing series on two-filter document culling.

Perusing Privileged Papers Prohibited

What to do? When reviewing discovery provided by your adversary you stumble upon a privileged document. It happens…sometimes privileged materials fall through the cracks and into the hands of opposing counsel. Do you read it, burn it, return it? According to a recent New Jersey decision, reading an inadvertently produced privileged document may be grounds for disqualification.

Court Extends Proportionality Principle to Duty to Preserve

In Lord Abbett Mun. Income Fund., Inc v. Asami, No. C-12-03694 DMR (N.D. Cal. Oct. 29, 2014), United State Magistrate Judge Donna M. Ryu granted the plaintiff’s motion for permission to no longer preserve computer workstations that were peripheral to discovery. The court extended and applied Rule 26(b) proportionality to the issue of ESI preservation, and gave dispositive weight to the plaintiff's sample-based review of the contents of the devices.

Are Communications with Experts Privileged? Maybe

In general, the attorney-client privilege protects confidential communications between an attorney and her client when made for the purpose of obtaining or providing legal advice.

Unintended Waiver: the “At-Issue” Exception to the AC Privilege

The attorney-client privilege, the oldest of the common law evidentiary privileges, seeks to encourage thorough and truthful communication between attorney and client. Attorneys know, however, that the privilege is not absolute. One such exception is known as the “at issue” exception, a form of implied waiver of the attorney-client and work product privileges. This form of waiver is unique because it is one which the parties, by commencing litigation that may implicate legal advice, bring on themselves. Let’s take a closer look at this often misunderstood exception to the rule.

Five Documents Sure To Appear In Your Lawsuit

Although simple and oftentimes overused, sports metaphors can provide insight into complicated topics. When it comes to employment litigation, cases often boil down to “blocking and tackling.” In other words, the fundamental (but unglamorous) activities often make a far greater difference than sophisticated lawyering.

10th Circuit Slaps Down EEOC Subpoena

In 2007, two persons in Colorado applied for employment with Burlington Northern Santa Fe R.R. Co. (BNSF). The company extended each applicant a conditional offer of employment, but rescinded each applicant's conditional offer following a medical screening. Each applicant then filed a separate charge of discrimination with the EEOC alleging that he was perceived as disabled in violation of the Americans With Disabilities Act.

Building An Effective Discovery Response Team

These days discovery is haunted by the twin specters of high compliance costs and sanctions for failure to meet compliance obligations. Nowhere are these more evident than in the class or collective action context, since the scope of discovery in such actions is generally substantially broader than in an individual claim.

Five Common Mistakes Lawyers Make in Electronic Discovery

No. 1: Failing to understand what electronically stored information (ESI) your client or the opposing party has.

Top Ten Things to Know About the Federal Rules of Civil Procedure Addressing Electronically Stored Information

The 12/1/06 rule changes make explicit the duties that already existed. Electronically stored information (ESI) has been discoverable for a long time.

Social Networking Discovery: Get Used To It

Russell Burke authored an article entitled "Social Networking Discovery: Get Used To It." It appeared in Strictly Speaking a publication of DRI - The Voice of the Defense Bar.

Opening the Door to Facebook: Severe Emotional Distress May be the Key.

A well reasoned opinion by Magistrate Judge Debra McVicker Lynch of the Southern District of Indiana dealing with a request for information from what she dubs Social Networking Sites (SNS) should be a starting point for anyone who is seeking (or opposing) information from an employment law plaintiff's facebook or myspace profile. The 13 page decision in EEOC v. Simply Storage Management that was issued on May 11, 2010 is a textbook example of what a good discovery ruling should be.

E-Mails, Memos, and Other Smoking Guns.

Hopefully, nothing in this article about the dangers of e-mails, memorandums, etc. will be news to you. You may even say to yourself "Who didn't know that?" Well, apparently some folks "forget" from time to time that information in e-mails, memorandums, and other documents is discoverable in litigation and may be the basis for large amounts of money changing hands. The information in them may or may not convey the author's actual beliefs or motivations – but it may be a jury who decides.

Less Paper, More Danger? (pdf).

The U.S. Supreme Court approved amendments to the Federal Rules of Civil Procedure pertaining to discovery of electronically stored information (ESI) that took effect on December 1, 2006. The new rules substantially alter prior practice by requiring litigants to, among other things, exchange, during the initial Rule 26(f) conference, detailed information about ESI, including how it is stored, whether it is being preserved and whether the information is reasonably accessible.

Electronic Data: New Rules, New Risks.

In recent years, far too many employers who are not sure how to protect their electronic information have allowed departing employees to take their most valuable trade secrets, degrade the value of their electronic data for litigation purposes, or have seen critical electronic evidence completely destroyed, exposing their organizations to serious civil and criminal liability.

How The New Electronic Discovery Rules Affect Your Business.

Recent changes in the Federal Rules of Civil Procedure will have an enormous impact on employment litigation over the next several years. The changes, which went into effect December 1, 2006, are designed to focus more attention on “e-discovery,” the production of electronic documents in court proceedings. These new rules will be a significant challenge for every employer who faces a lawsuit from now on.

Employment Law Update: New Rules on Electronic Discovery Now in Effect (pdf).

Amendments to Rule 26 of the Federal Rules of Civil Procedure pertaining to the exchange of electronic data during course of litigation went into effect on December 1, 2006.