27 Thursday Apr 2017
Posted in Discovery, Interrogatories
Interrogatories Asking for Insurance Coverage Information, by Paul Luvera, Plaintiff Trial Lawyer Tips
When your discovery rules allow the plaintiff to get the defendant’s insurance coverage, never miss the opportunity to get all the details you can. Here are some excellent examples of interrogatories and strategy. -CCE
22 Saturday Apr 2017
Use Your Deposition as Your Sword and Shield, by Dr. Ken Broda-Bahm, Persuasive Litigator™
Depositions can be taken months, even years, before a case goes to trial. Even though you may routinely provide every deponent with a copy of the transcript of his or her deposition, does the witness or your client really understand how important it truly is to study it thoroughly? Sometimes I wonder whether they see it more as a bother. Including a copy of this post might help. -CCE
See also Overlearn Your Deposition, by Dr. Ken Broda-Bahm, Persuasive Litigator™ at http://www.persuasivelitigator.com/2017/02/overlearn-your-deposition.html.
09 Sunday Apr 2017
Posted in Discovery, Medical Records
Tips for Unlocking Medical Records That Will Make a Paralegal’s Job Easier, by Karen Clark, MS, RN; Patricia Iyer, RN, MSN, LNCC; Barbara Levin, BSN, RN, ONC, LNCC; and Mary Ann Shea, JD, BS, RN, Paralegal Today (Originally appeared in print as “Unlocking Medical Records” July/August 2004)
http://paralegaltoday.com/issue_archive/features/feature2_ja04.htm
“How to” on obtaining, organizing, and analyzing medical records, complete with chart for tracking them. -CCE
12 Sunday Mar 2017
Posted in Discovery, Federal Rules of Discovery, Objections
≈ Comments Off on Will Your Standard Boilerplate Discovery Objections Cut the Mustard in Federal Court?
Tags
2015 Amendment to Federal Rules of Civil Procedure, Daniel M. Braude, Discovery Objections, Product Liability Advocate
Don’t Risk Waiving All Objections to Discovery Responses, by Daniel M. Braude, Wilson Elser, Product Liability Advocate
Remember the changes made to the Federal Rules of Civil Procedure in December, 2015? Mr. Braude strongly urges us to update our discovery form files. He has a convincing reason. -CCE
10 Friday Mar 2017
Posted in Discovery, Expert Witness, Federal Rules of Discovery, Rule 26
≈ Comments Off on A Federal Discovery Rule Quiz.
Tags
Discovery, Expert Witness Discovery, Litigation, Litigation and Trial, Rule 26, The Law Blog of Plaintiff’s Attorney Max Kennerly
Treating Physicians & Non-Retained Expert Witnesses: What Do Parties Have to Disclose Before Trial? by Max Kennerly, Esq., Litigation and Trial, The Law Blog of Plaintiff’s Attorney Max Kennerly
Under Rule 26 of the Federal Rules of Civil Procedure, who is a “non-retained expert witness” and when does that witness need to provide a thorough report rather than a summary report? And what would you expect a judge to say if you do not disclose a non-retained expert witness? As always, it depends. -CCE
28 Tuesday Feb 2017
Posted in Attorney Work Product, Attorney-Client Privilege, Clouds, Confidentiality, Discovery, Dropbox, Emails, Encryption, Evidence, Insurance Defense, Legal Ethics, Legal Technology, Litigation, Passwords, Privilege and Confidentiality, Requests for Production, Sanctions, Subpoena Duces Tecum
≈ Comments Off on Do You Use the Cloud for Document Storage or Production? Read This First.
Tags
ABA Journal, Attorney-Client Privilege, Cloud Storage, Confidentiality, Debra Cassens Weiss, Discovery, File Sharing, Legal Ethics, Work Product Doctrine
Upload To File-Sharing Site Was Like Leaving Legal File On A Bench, Judge Says; Privilege Is Waived, by Debra Cassens Weiss, ABA Journal©
Many use the cloud for file storage and sharing when attachments are too big to send by email. If you use the cloud for storage, file-sharing or transfer, document management, project management, or anything similar, here is a cautionary tale.
The plaintiff insurance company sued the defendants, and sought a declaratory judgment on the defendants’ claim of loss by fire. The plaintiff’s investigator uploaded the entire claims file, including surveillance footage, to a drop-box cloud, Box, Inc. The link had no encryption or password. Access to the link alone allowed anyone to see the file.
He then sent the link by email to the plaintiff insurance company, who sent it to the insurance company’s attorneys, who inadvertently sent it the defendants’ counsel in response to a subpoena duces tecum.
The defendants’ counsel looked at it, but didn’t tell the plaintiff they had seen the privileged and confidential information. Inevitably, the defense sent the information back on a thumb drive to the plaintiff’s attorneys during discovery.
After vigorous arguments about confidentiality, work-product doctrine, attorney-client privilege, and disqualification of defense counsel, the facts and court’s reasoning make this an interesting read. -CCE
22 Sunday Jan 2017
Posted in Authentication, Discovery, E-Discovery, Evidence, Rule 803 Exception, Rule 902
≈ Comments Off on New Federal Rules in Evidence in 2017 Will Affect The Hearsay Exception and E-Discovery.
Tags
BakerHostetler, Carey Busen, Discovery Advocate Blog, E-Discovery, Federal Rules of Evidence, Gilbert S. Keteltas, Gregg Kettles, Hearsay, Santa Clara Law Review
14 Saturday Jan 2017
Posted in Discovery, E-Discovery, Federal Rules of Discovery, Requests for Production
≈ Comments Off on E-Discovery and the Law of Diminishing Returns.
Citing “Diminishing Returns,” Court Declines To Compel Additional Discovery, Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2016 WL 7208753 (W.D.N.Y. Dec. 13, 2016), Electric Discovery Law, K&L Gates
When it comes to e-discovery, how much is too much? When do you or opposing counsel reach the point where the costs outweigh the value? The 2015 amendment to the Federal Rules of Civil Procedure did much to provide more guidance on e-discovery. Rule 26 is the focus of this post.
E-discovery normally means that you and your client have spent hours and lots of money on the case. If you cannot decide when enough is enough and neither the client nor the attorney are willing to stop the bleeding, the court may do it for you. Actually, the court has a duty to stop e-discovery when it becomes redundant and the cost outweighs the value of the return. -CCE
16 Sunday Oct 2016
Posted in Discovery, E-Discovery, Preservation
≈ Comments Off on The Difference Between a Preservation Letter and Presentation Notice.
Crafting the “Perfect” Legal Hold Notice, by Craig Ball, Ball In Your Court
https://ballinyourcourt.wordpress.com/2016/10/09/crafting-the-perfect-legal-hold-notice/
When it comes to e-discovery, Craig Ball and his blog, Ball in Your Court, is one of my top resources. Some years ago, he posted “The Perfect Preservation Letter,” as a guide of what you would send to the opposing party to put them on notice of a litigation hold.
This document is similar and just as important – an internal notice or the kind of notice you would give to your client. The following is only a snippet of his post.
When it comes to deciding whether to send a preservation letter or notice, I would err on the side of caution. In the early stages of a case, you may not know whether the legal issue will become litigation. Not all disputes are litigated. But if you wait until it does, e-discovery may already be wiped or corrupted.
Some clients may balk at the scope and breadth of your preservation notice, which is why it Mr. Ball’s rules of thumb are so helpful. A reasonable precaution will be worth the effort. – CCE
[T[he inapparent distinction between a preservation letter and a preservation notice is that the latter is an internal communication better termed a legal hold directive. You send a preservation letter to the other side. The preservation notice is what a party furnishes to its own principals, employees, agents, contractors and anyone else aligned with the party giving the notice and obliged to preserve information in anticipation or initiation of litigation. Clearly, we must find better terminology to distinguish the two than just “letter” and ‘notice.’
[I] drafted a list of ten elements I thought were essential components of whatever communication aspires to call itself the perfect preservation notice.
11 Tuesday Oct 2016
Posted in Discovery, Document Review, E-Discovery, Emails, Federal Rules of Discovery, Preservation, Requests for Production, Subpoena Duces Tecum
≈ Comments Off on For E-Discovery Requests, The Court Says It’s Not Enough To Say Nothing Was Found.
Don’t Just Say, “No Emails Found,” by Josh Gilliland, Bow Tie Law Blog
http://bowtielaw.com/2016/10/04/dont-just-say-no-emails-found/
The plaintiff asked the defendant to produce emails relevant to an event on a specific date. The defendant said there were no such emails, and had nothing to produce. The judge agreed that the defendant could not produce what did not exist, but ordered the defendant to show how it determined no emails existed. Simply saying that no emails existed was not a sufficient answer.
If you are the defendant, what else should you say to satisfy the court? -CCE
20 Saturday Aug 2016
I admit it. I love writing and answering discovery. Too often, I have seen boilerplate discovery asking for something that is not relevant. What a waste. Do not write discovery if you know nothing about the case. Blindly sending boilerplate discovery at best makes you look busy. At worst, it makes you look sloppy.
Discovery rules change. Read and re-read the court rules, local court rules, and the applicable discovery code. At the outset of the case, send your client and the opposing party a litigation hold letter. It does not matter whether either is an individual or a big corporation. Everyone uses email and sends texts on their cell phones.
Before you start writing discovery, you have to be familiar with the facts and law of your client’s case. If you aren’t, read the pleadings. Understand why the plaintiff sued the defendant(s) and what answer the defendant gave to those allegations, including all affirmative defenses. If it helps, make a chart or an outline.
There is a basic way to determine what discovery you should request. First, make a list of what you need to prove your case. We’ll call this List #1. Second, ask yourself whether you have everything needed to prove (or defend) everything on List #1? You won’t. So, third, make a list of what you need – List #2. Your client will provide some of the evidence you need, and you will use discovery to continue your search. Revise List #2 to identify what you need but do not have.
With List #2 as your guide, use discovery to get whatever else you need to prove your case. Each type of discovery is unique. Play to their strengths, which is a post all by itself. Craft your discovery to snag that evidence and identify anyone who is a potential witness and/or document custodian.
A quick word about Definitions and Instructions. Please do not regurgitate the discovery rules. I admit that I do not follow my own advice. I like to remind opposing counsel (and the opposing party) that there is a continuing obligation to supplement discovery. In the hopes that it will save time and aggravation, I also like to add the specific language from the discovery code about when you can object and why.
Define only what is necessary. If there is room for confusion, clarify what is what and who is whom. If the case revolves around specific documents, such as a contract or an event, define it with a simple designation. Your goal is instant recognition of whatever it is. If there are more than one contract or event, make your definitions basic and easy to recognize.
As soon as you receive the responses to your discovery, mark every incomplete answer or objection. Ask for supplementation where needed, and follow up. If an objection is ridiculous or simply obstructive, challenge it while at the same time building exhibits to support a motion to compel (read the rules!). Do not wait until the discovery deadline is looming to stay on top of this.
This one should be a no-brainer, but I still see it every so often. A party objects to the most basic discovery question and refuses to answer. The other side asks a standard, basic interrogatory, and you object. Really? You cannot enforce it. You know it; I know it; and the other side knows it.
Say goodbye to your boilerplate forms. If you use a form, proofread. Know your case. Adapt your discovery plan as the case progresses. These are not all the basics, but it will hopefully give you a running start. -CCE
20 Wednesday Apr 2016
Posted in Discovery, Requests for Production, Subpoena Duces Tecum
≈ Comments Off on Using Discovery to Search for Hidden Assets.
Tags
Asset Search Blog, Discovery, Fred L. Abrams, Hidden Assets, Request for Production of Documents
Using A Production Request In Your Asset Search, by Fred L. Abrams, Asset Search Blog (Fred L. Abrams©2016)
If you are a divorcing spouse, judgment creditor or other litigant, how do you conclusively establish whether or not assets have been hidden from you? You can sometimes reasonably determine this by using legal tools to search for assets. In a pending litigation, these tools might include: depositions; subpoenas; interrogatories; production requests; etc.
Below is part of a production request in the hypothetical case of ‘JOHN DOE.’ The production request seeks access to JOHN DOE’s passport; credit cards; phone records; etc. By analyzing this kind of material one might possibly detect secret offshore bank accounts or other hidden assets. . . .
03 Sunday Apr 2016
Posted in Civil Procedure, Discovery, E-Discovery, Federal Rules of Discovery, Litigation, Research
≈ Comments Off on Craig Ball Presents “Introduction to Discovery in U.S. Civil Litigation.
Introduction to Discovery in U.S. Civil Litigation, by Craig Ball, Ball In Your Court
https://ballinyourcourt.wordpress.com/2016/04/03/introduction-to-discovery-in-u-s-civil-litigation/
Thank you, Craig Ball, for generously sharing your materials. If you have any interest whatsoever in litigation, this is a “must” read. -CCE
I am fortunate to teach electronic discovery and digital evidence in many venues. . . .
All of these entail accompanying written material, so there is a lot of research and writing for the various courses and presentations. Some of my students aren’t lawyers or are law students with the barest theoretical understanding of discovery. I’ve found it’s never safe to assume that students know the mechanisms of last-century civil discovery, let alone those of modern e-discovery. Accordingly, I penned the following short introduction to discovery in U.S. civil litigation and offer it here in case you need something like it, especially if you’re also teaching this stuff. [It’s copyrighted, but feel free to use it with attribution]. . . .
10 Thursday Mar 2016
Posted in Brief Writing, Discovery, Evidence, Legal Writing, Litigation, Motions
≈ Comments Off on In Litigation, First Things First.
Motions first, depositions second, by Kirby Griffis, Brief Right!
http://briefright.com/motions-first/
In my business, litigation, there is a typical order of events. A lawsuit is filed, then discovery is taken, then motions are filed and ruled upon, and then there is a trial. Litigators who haven’t thought carefully about their business may fall into the error of compartmentalizing these steps too much. Have you ever gone to write a crucial motion, only to discover that the testimony or documentary evidence that you need to put forward under the applicable law was never obtained, or came in the wrong way without being fixed?
25 Thursday Feb 2016
Posted in Discovery, Document Review, Federal Rules of Discovery, Recent Links and Articles
≈ Comments Off on Don’t Challenge Under Rule 34 If You Cannot Explain Why.
Tags
Bates Numbering, Bow Tie Law Blog, E-Discovery, Joshua Gilliland, Request for Production, Rule 34
Attack the Form of Production, by Joshua Gilliland, Esq., Bow Tie Law Blog
Oh, Rule 34. You are the code section that keeps giving.
Under Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i), a party ’must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.’
A Plaintiff brought a motion to compel the opposing party to organize and label their production to correspond to the categories in the Plaintiff’s Requests for Production. Things did not go well for the Plaintiff’s motion. . . .
25 Thursday Feb 2016
Posted in Cell Phones, Discovery, E-Discovery, Emails, Emails, Legal Technology, Litigation Hold, Municipal Law, Open Records Act, Preservation, Requests for Production, Sanctions
≈ Comments Off on Litgation Hold – Too Little Too Late.
Tags
Doug Law, E-Discovery, eDiscovery daily Blog, Emails, Litigation Hold, Police, Sanctions, Text Messages
Our Nation’s Largest City is Not Immune to eDiscovery Sanctions: eDiscovery Case Law, by Doug Law, eDiscovery daily Blog
In Stinson v. City of New York, 10 Civ. 4228 (RWS) (S.D.N.Y. Jan. 2, 2016), New York District Judge Robert W. Sweet granted in part and denied in part the plaintiffs’ motion seeking sanctions for spoliation of evidence against the defendants for failure to issue a litigation hold, opting for a permissive inference rather than a mandatory adverse inference sanction against the defendants .
Case Background
In this civil rights class action against the City of New York, it was determined that the City did not issue any litigation hold until August 8, 2013, more than three years after the filing of the Complaint in this case and the litigation hold was not effectively communicated, and none of the officers who were named in the City’s initial disclosures acknowledged receiving it. . . .
06 Saturday Feb 2016
Posted in Android Phones, Blackberry Phones, Cell Phones, Discovery, E-Discovery, Evidence, Forensic Evidence, iPhones, Legal Technology, Preservation, Sanctions, Spoilation
≈ Comments Off on Clients – Don’t Wipe That Cell Phone!
Appeals Court Upholds Terminating Sanctions For Wipe of Cell Phone, by Doug Austin, eDiscovery Case Law
In Woodell v. Bernstein, et. al., No. 14-2836 (Cal. App., Dec. 30, 2015), the California Court of Appeals affirmed the judgment of the trial court, which imposed terminating sanctions against the plaintiff for spoliation of evidence and dismissed his lawsuit with prejudice after the plaintiff had wiped his cell phone, which was key to the case. . . .
17 Sunday Jan 2016
Posted in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Witness Preparation for Depositions. How to Say Enough But Not Too Much.
Witness, Don’t Teach” (in Deposition), by Dr. Ken Broda-Bahm, Persuasive Litigator™
One common piece of advice given to fact witnesses during deposition preparation meetings is that it isn’t their role to instruct opposing counsel on everything they ought to know: ‘Witness, Don’t Teach.’ . . .
Earlier this week, I was working with an anesthesiologist who simply could not deaden his impulse to take each question as an invitation to explain, expand, and expound. Applying our advice to ‘just answer the question and stop’ proved difficult once he got into the expository groove of his typical conversation style with colleagues, patients, and family members. That habit is one worth breaking, even if it takes some extra work and focus. . . . To aid in the continuing effort to convince witnesses to take off their teacher’s hats during the deposition, this post shares five reasons why that’s a good idea. . . .
17 Sunday Jan 2016
Posted in Discovery, Federal Rules of Discovery, Interrogatories, Relevance, Requests for Admissions, Requests for Production, Sanctions
≈ Comments Off on Wise Advice on Drafting Definitions and Instructions in Discovery.
Tags
Definitions and Objections, Discovery, Prof. Denis Stearns, Sanctions, Seattle University School of Law
Drafting & Using Effective Definitions for Interrogatories (And Other Ways To Make It Much Less Defensible To Object), by Prof. Denis Stearns, Seattle University School of Law, Of Counsel, Marler Clark, LLP, PS
Probably one of the best and most logical explanations on how and when to include Instructions or Definitions in your discovery requests and how to deal with boilerplate objections. Good advice and tips for even the most experienced litigator. -CCE
16 Saturday Jan 2016
Posted in Attorney Discipline, Benchslap, Depositions, Discovery, Judges, Legal Ethics, Professional Civility, Rules of Professional Responsibility
≈ Comments Off on Gender Discrimination During Deposition Earns Judge’s Benchslap.
Lawyer Receives Stern Benchslap And Amazing Sanction For Sexist Deposition Comment, by Staci Zaretsky, Above The Law Blog
As we’ve thoroughly documented in these pages, women who practice law are often subjected to demeaning and degrading comments from their male colleagues, for no other reason than because they’re women. One federal judge had finally had enough of this type of disrespectful behavior, so he took a lawyer to task for making a sexist remark during a deposition. . . .
01 Friday Jan 2016
Posted in Diligence, Discovery, E-Discovery, Federal Judges, Interrogatories, Judges, Legal Ethics, Requests for Admissions, Requests for Production, Rules of Professional Responsibility
≈ Comments Off on Chief Justice Urges Judges To Impose More Management Over Their Cases.
Chief Justice Wants Less Gamesmanship By Lawyers, by Lyle Denniston, SCOTUSblog
Justice Roberts’ words apply to state courts as well. Ignoring client’s cases, unnecessary and burdensome discovery disputes, and repeated continuances do nothing to endear the legal profession to their clients or the public. -CCE
Speaking in soft but plain words, Chief Justice John G. Roberts, Jr., used his year-end report on Thursday night to urge lawyers who practice in federal courts to take steps to help improve the efficiency, and reduce the cost, of trying cases. Roberts also added some strong encouragement for judges who preside over federal civil trials to take greater control of the management of cases, rather than leaving the process to the tactics of the competing lawyers. . . .
26 Thursday Nov 2015
Posted in Court Rules, Courts, Discovery, E-Discovery, Federal District Court Rules, Preservation
≈ Comments Off on Questions About The New Federal Rules Amendments on Discovery? – 3rd of 5-Part Guide.
Tags
Amended Rules of Federal Civil Procedure, Discovery Advocacy Blog, E-Disocvery, Gary Levin, James A. Sherer, Jonathan Forman, Karin Scholz Jenson, Preservation, Robert J. Tucker
Day 3: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Preservation, by Karin Scholz Jenson, Gary Levin, Robert J. Tucker, James A. Sherer and Jonathan Forman, Discovery Advocacy Blog
This is the third of five posts discussing the current amendments to the Federal Rules of Civil Procedure. The Rules went into effect December 1, 2015. Today’s post addresses “Preservation.” -CCE
26 Thursday Nov 2015
Posted in Admissibility, Concept Search Tools, Court Rules, Courts, Discovery, E-Discovery, Evidence, Federal District Court Rules, Preservation, Rule 16 Conference
≈ Comments Off on Questions About The New Federal Rules Amendments on Discovery? – 2nd of 5-Part Guide.
Tags
Amended Rules of Federal Civil Procedure, Discovery Advocate Blog, Early Case Assessment, Gary Levin, James A. Sherer, Jonathan Forman, Karin Scholz Jenson, Preservation, Robert J. Tucker, Rule 16 Conference
Day 2: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Early Case Assessment, by Karin Scholz Jenson, Gary Levin, Robert J. Tucker, James A. Sherer and Jonathan Forman, Discovery Advocate Blog
The current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where ‘just and practicable’ — the focus among attorneys and their clients has changed from what the Rules should say to how they should work. While debates remain as to how certain parts of the Rules will wear-and-tear once put to the test in discovery, there are clear indications within the text of the Rules (with some help from the Committee Notes to the Rules and the contributions of judges and other writers) as to how the Rules will apply. . . .
Today we review: Early Case Assessment.
21 Saturday Nov 2015
Posted in Civil Procedure, Discovery, E-Discovery, Federal Civil Procedure, Preservation
≈ Comments Off on Questions About The New Federal Rules Amendments on Discovery? – 1st of 5-Part Guide.
Tags
Discovery Advocate Blog, Federal Rules of Civil Procedure, Gary Levin, James A. Sherer, Jonathan Forman, Karin Scholz Jenson, Proportionality, Robert J. Tucker, Rule 26
Day 1: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Proportionality, by Karin Scholz Jenson, Gary Levin, Robert J. Tucker, James A. Sherer and Jonathan Forman, Discovery Advocate Blog
If you do not fully comprehend the recent amendments to the Federal Rules of Civil Procedure, you are not alone. We will learn more as district and circuit courts rule on cases affected by these amendments.
Please note the hyperlink under the “Conference Commentary” button to see the Summary of The Report of The Judicial Conference Committee on Rules of Practice and Procedure, which will also assist you. -CCE
The current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where ‘just and practicable’ — the focus among attorneys and their clients has changed from what the Rules should say to how they should work . . . .
15 Sunday Nov 2015
Posted in Discovery, E-Discovery, Emails, Preservation
≈ Comments Off on Were Deleted Emails A Failure to Preserve?
Prejudice and to Avoid “Confusing the Issues,” by Electronic Discovery Law, K&L Gates Blog
West v. Talton, No. 5:13-cv-338 (CAR), 2015 WL 6675565 (M.D. Ga. Nov. 2, 2015)
In this case, the court granted Defendants’ motion to exclude ‘Plaintiff’s use of any argument or evidence of alleged spoliation’ where, despite Defendants’ failure to preserve emails from an individual defendant, they were nonetheless able to locate the relevant defendant’s ‘old computer’ and to hire a third party to search for and recover relevant emails and documents from the same. . . .
