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
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
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
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]. . . .
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. . . .
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
04 Sunday Oct 2015
Posted in Admissibility, Discovery, E-Discovery, Emails, Emails, Evidence, Federal Rules of Discovery, Forensic Evidence, Gap-Period Emails, Legal Technology, Motion to Compel, Relevance, Requests for Production
≈ Comments Off on Defendant Ordered by Court to Produce Gap-Period Emails on Backup Tapes.
Defendant Compelled to Restore and Produce Emails from Backup Tapes: eDiscovery Case Law, by Doug Austin, eDiscoveryDaily Blog
In United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, (D. Nev. Aug. 25, 2015), Nevada Magistrate Judge Valerie P. Cooke concluded that emails contained on backup tapes held by the defendants was not reasonably inaccessible due to undue cost and, even if the emails were reasonably inaccessible due to undue burden or undue cost, ‘good cause supports their discoverability.’ . . .
10 Monday Aug 2015
Posted in Attorney Work Product, Attorney-Client Privilege, Discovery, Federal Rules of Discovery, Privilege and Confidentiality, Privilege Log, Requests for Production
≈ Comments Off on 2,941 Page Privilege Log? Better Make It Good.
Tags
Attorney-Client Privilege, Discovery, Doug Austin, eDiscoveryDaily Blog, Motion to Compel, Privilege Logs
If You’re Going to Submit a 2,941 Page Privilege Log, You’d Better Be Able to Demonstrate Privilege: eDiscovery Case Law, by Doug Austin, eDiscoverydaily Blog
The last post by Mr. Gilliland is an excellent illustration of the rule for privilege logs. This example? Well, you be the judge. -CCE
In United States v. Louisiana, 11-470-JWD-RLB. (M.D. La. July 31, 2015), Louisiana Magistrate Judge Richard L. Bourgeois, Jr., after reviewing 40 documents provided by the defendant for in-camera review, granted the plaintiff’s Renewed Motion to Compel a Proper Privilege Log, after denying the original motion because the plaintiff only provided 13 examples of ‘insufficient descriptions’ within the privilege log’s entries. . . .
10 Monday Aug 2015
Posted in Attorney Work Product, Attorney-Client Privilege, Discovery, Federal Rules of Discovery, Privilege and Confidentiality, Privilege Log, Requests for Production
≈ Comments Off on Privilege Logs.
Tags
Attorney-Client Privilege, Bow Tie Law Blog, Confidentiality, Discovery, Joshua Gilliland, Privilege Logs
A Case Study on Privilege Logs, by Joshua Gilliland, Esq., Bow Tie Law Blog
https://bowtielaw.wordpress.com/2015/08/08/a-case-study-on-privilege-logs/
In this post, Mr. Gilliland suggests an Excel format and headings for a privilege log with a reminder to cover the privilege log rule requirements. Here is another basic example in Google Docs:
https://docs.google.com/document/d/1DKgo192j0sQfbj5H51gFQZNFbcrQJOxuBaUU3ZzZGBU/preview
-CCE
Privilege logs require more than merely saying a prospectively privileged document is an ‘attorney-client communication.’ This requires litigants to conduct privilege review with far more analysis than simply tagging discovery ‘Attorney Client Privilege’ or ‘Work Product Conduct.’ The case of United States v. State & La. Dep’t of Health & Hospitals highlights the importance of effective discovery review in creating privilege logs. . . .
25 Monday May 2015
Posted in 7th Circuit Court of Appeals, Depositions, Discovery, Federal Rules of Discovery, Relevance, Requests for Production, Subpoena Duces Tecum
≈ Comments Off on Judge Uses The “Mommy Voice.”
Tags
Above the Law, Benchslap, David Lat, Depositions, Discovery, Discovery Abuse, Judge Richard Leon
Benchslap Of The Day: Just. Produce. The Documents!, by David Lat, Above The Law Blog
http://abovethelaw.com/2014/02/benchslap-of-the-day-just-produce-the-documents/
What’s the “Mommy Voice?” We have all been there, and may have used it ourselves. It’s when your parent – usually your mother — calls you using your first, middle, and last names in a no-nonsense voice. Usually, whatever happens next, it isn’t pretty. -CCE
Yes, benchslaps are great fun to read about, especially if you enjoy a little schadenfreude. But benchslaps are not fun to receive — and they’re not always justified.
Because of the prestige of judicial office, judges generally get the benefit of the doubt when dishing out benchslaps. But sometimes judges go too far. For example, some observers felt that Judge Richard Posner crossed the line when interrogating a Jones Day partner during a recent Seventh Circuit argument.
This brings us to today’s benchslap — directed at a lawyer for the federal government, no less. It’s harsh, but is it warranted? . . .
02 Saturday May 2015
Posted in Discovery, Exhibits, Federal Rules of Discovery, Interrogatories, Requests for Admissions, Requests for Production, Trial Tips and Techniques
≈ Comments Off on Top Ten Checklist For Reviewing Discovery.
Tags
Carol Treasure, Discovery Responses, Privilege Log, The Bar Association of San Francisco, Trial Exhibits, Trial Tips & Techniques
Top Ten Things To Do With Discovery Responses, by Carol Treasure, RN, PhD, JD, Cooper & Scully, P.C., The Bar Association of San Francisco
http://www.sfbar.org/basf-bulletin/2012/dec-2012/discovery-responses.aspx
Attorneys expend tremendous effort drafting interrogatories and requests for admissions or documents. Having a checklist will assist you when reviewing the discovery responses. Below is a list of ten things you can do with discovery responses which can save you time and help with case management. . . .
02 Saturday May 2015
Posted in Discovery, E-Discovery, Federal Rules of Discovery, Requests for Production
≈ Comments Off on No Perfection Standard In E-Discovery?
Tags
Ball In Your Court Blog, Competency, Craig Ball, Discovery, E-Discovery, Request for Production of Documents
Is There a Right to Fail in E-Discovery?, by Craig Ball, Ball In Your Court Blog
https://ballinyourcourt.wordpress.com/2015/05/01/is-there-a-right-to-fail-in-e-discovery/
Disagreements about scope and process in e-discovery shouldn’t split between plaintiffs’ and defendants’ interests. After all, everyone is a requesting and producing party, whether north or south of the ‘v.’ Yet, the reality is that most defense counsel see themselves as producing parties, and most plaintiffs’ counsel identify with requesting parties. That unfortunate alignment poisons our ability to set aside allegiances and be officers of the Court mutually determined to find the most effective and efficient means to discover evidence illuminating the issues.
Cooperation in e-discovery is derided as naive in an adversarial system of justice, and ‘discovery about discovery’ is vilified as a diversionary tactic, a modern take on the maxim, ‘if you can’t try the case, then try your opponent.’ Counsel for responding parties are quick to note that no party is obliged to deliver a perfect production. They’re absolutely right. Perfection is not the standard. But, is a producing party entitled to fail before a requesting party may inquire into the scope and process of e-discovery? Must we wait until the autopsy to question the care plan? . . . .
07 Saturday Mar 2015
Posted in Continuing Legal Education, Diligence, Discovery, E-Discovery, Ethics Opinions, Federal Rules of Discovery, Legal Ethics, Technology
≈ Comments Off on Why Aren’t All Lawyers And Law Students Trained In E-Discovery And Should They Be?
The Conundrum of Competence in E-Discovery: Need Input, by Craig Ball, Ball In Your Court Blog
I frequently blast lawyers for their lack of competence when it comes to electronic evidence. I’m proud to be a lawyer and admire all who toil in the fields of justice; but I cannot hide my shame at how my brilliant colleagues have shirked and dodged their duty to master modern evidence.
So, you might assume I’d be tickled by the efforts of the American Bar Association and the State Bar of California to weave technical competency into the rules of professional conduct. And I am, a little. Requiring competence is just part of the solution to the competence crisis. The balance comes from supplying the education and training needed to become competent. You can’t just order someone who’s lost to ’get there;’ you must show them the way. In this, the bar associations and, to a lesser extent, the law schools have not just failed; they’ve not tried to succeed.
The legal profession is dominated by lawyers and judges. I state the obvious to expose the insidious: the profession polices itself. We set the standards for our own, and our standard setters tend to be our old guard. What standard setter defines himself out of competence? Hence, it’s extraordinary that the ABA commentary to Model Rule 1.1 and the proposed California ethics opinion have emerged at all.
These laudable efforts just say ‘get there.’ They do not show us the way. . . .
08 Sunday Feb 2015
Posted in Concept Search Tools, Discovery, Document Review, E-Discovery, Emails, Federal Rules of Discovery, Legal Technology, Microsoft Office, Native Format, Outlook, Preservation, Requests for Production, Rule 34
≈ Comments Off on Do-It-Yourself E-Discovery? Is There Such A Thing?
Tags
Ball In Your Court Blog, Computer Forensics, Craig Ball, Discovery, E-Discovery, E-Mail, Evidence, Native Format, PST Files
Do-It-Yourself Digital Discovery, Revisited, by Craig Ball, Ball In Your Court Blog
In case you have not noticed, Craig Ball is re-posting older articles, as he explains below. Truly folks, when it comes to e-discovery, when Craig Ball speaks, I listen. Maybe you should too.
I have posted many of his revisited posts. To find them all, visit his blog, Ball In Your Court at https://ballinyourcourt.wordpress.com/. -CCE
This is the thirteenth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.
Do-It-Yourself Digital Discovery [Originally published in Law Technology News, May 2006]
Recently, a West Texas firm received a dozen Microsoft Outlook PST files from a client. Like the dog that caught the car, they weren’t sure what to do next. Even out on the prairie, they’d heard of online hosting and e-mail analytics, but worried about the cost. They wondered: Did they really need an e-discovery vendor? Couldn’t they just do it themselves?
As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ’Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’
Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.
As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ‘Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’
Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.
The West Texas lawyers sought a way to access and search the Outlook e-mail and attachments in the PSTs. It had to be quick and easy. It had to protect the integrity of the evidence. And it had to be cheap. They wanted what many lawyers will come to see they need: the tools and techniques to stay in touch with the evidence in smaller cases without working through vendors and experts.
What’s a PST?
Microsoft Outlook is the most popular business e-mail and calendaring client, but don’t confuse Outlook with Outlook Express, a simpler application bundled with Windows. Outlook Express stores messages in plain text, by folder name, in files with the extension .DBX. Outlook stores local message data, attachments, folder structure and other information in an encrypted, often-massive database file with the extension .PST. Because the PST file structure is complex, proprietary and poorly documented, some programs have trouble interpreting PSTs.
What About Outlook?
Couldn’t they just load the files in Outlook and search? Many do just that, but there are compelling reasons why Outlook is the wrong choice for an electronic discovery search and review tool, foremost among them being that it doesn’t protect the integrity of the evidence. Outlook changes PST files. Further, Outlook searches are slow, don’t include attachments (but see my concluding comments below) and can’t be run across multiple mail accounts. . . . .
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20 Tuesday Jan 2015
Posted in Depositions, Discovery, Federal Rules of Discovery, Objections
≈ Comments Off on Deposition Advice for Witnesses.
Tags
Depositions, Dr. Ken Broda-Bahm, Leading Questions, Objections, Persuasive Litigator, Witness Preparation, Witnesses
Don’t Be Led (in Deposition), by Dr. Ken Broda-Bahm, Persuasive Litigator
The name ‘Discovery’ doesn’t quite do justice to the litigation phase it describes. When it’s done well and with purpose, the point of discovery isn’t so much to discover evidence as it is to create evidence. In deposition, for example, the deposing attorney’s fondest wish is not to discover the witness’s view of what happened, but instead to get that witness to confirm the attorney’s version of what the case requires. For that reason, taking a deposition is all about control. The deposing attorney would just testify on his own if he could, but the process doesn’t allow that, so the next best thing is to fully control the witness. And the best way to fully control the witness is to lead. . . .
28 Friday Nov 2014
Posted in E-Discovery, Federal Rules of Discovery, Requests for Production, Rule 34
≈ Comments Off on Is It That Hard To Follow Rule 34? Not According To The Judge.
Tags
Bow Tie Law’s Blog, Document Dump, Document Production, E-Discovery, Federal Rules of Discovery, Joseph Gilliland, Magistrate Judge Paul Grewal, Request for Production, Rule 34
Rule 34: As Basic As You Get, by Joseph Gilliland, Bow Tie Law’s Blog
Magistrate Judge Paul Grewal is one of the new heroes of eDiscovery jurisprudence. In Venture Corp. Ltd. v. Barrett, the good Judge opened with the following on Rule 34:
Most lawyers (and hopefully judges) would be forgiven if they could not recite on demand some of the more obscure of the Federal Rules of Civil Procedure. Rule 80 (Stenographic Transcript as Evidence) and Rule 64 (Seizing a Person or Property) come to mind. But Rule 34 (Producing Documents, Electronically Stored Information, and Tangible Things) is about as basic to any civil case as it gets. And yet, over and over again, the undersigned is confronted with misapprehension of its standards and elements by even experienced counsel. Unfortunately, this case presents yet another example.
Venture Corp. Ltd. v. Barrett, 2014 U.S. Dist. LEXIS 147643, 1 (N.D. Cal. Oct. 16, 2014).
Here is what happened: The Defendant served discovery requests on the Plaintiff and wanted the discovery and organized and labeled to identify the requests to which they were responsive; The Plaintiff did not want to do that and instead produced 41,000 pages of discovery, which ended with the Court ordering re-production for not following either Rule 34(b)(2)(E)(i) or (ii). Venture Corp. Ltd., at *1-2.
The Tactical Document Dump
Federal Rule of Civil Procedure Rule 34 is supposed to prevent the ‘document dump,’ which was the attorney Cold War equivalent of a doomsday weapon. . . .
02 Tuesday Sep 2014
Posted in Discovery, E-Discovery, Federal Rules of Discovery, Interrogatories, Requests for Production
≈ Comments Off on Avoidable E-Discovery Mistake – A Good Lesson on Proportionality.
Tags
Bow Tie Law’s Blog, E-Discovery, Fair Housing Act, Joshua Gilliand, Predictive Coding, Request for Production
Nebraska, Where Proportionality is Alive and Well in Discovery, by Joshua Gilliand, Esq., Bow Tie Law’s Blog
One lesson from United States v. Univ. of Neb. at Kearney, is that maybe you should take depositions of key parties and use interrogatories to find out relevant information to your case before asking for over 40,000 records that contain the personal information of unrelated third-parties to a lawsuit. . . .
03 Sunday Aug 2014
Posted in Depositions, Discovery, Federal Rules of Discovery, Objections, Sanctions, U.S. District Court of the Northern District of Iowa
≈ Comments Off on Federal Judge Benchslaps Counsel For Discovery Abuse In A Very Special Way.
Tags
Above the Law (blog), Deposition Objections, Discovery Abuse, Discovery Sanctions, Joe Patrice, Judge Mark Bennett
Biglaw Firm Ordered To Make A Video Apologizing For Discovery Abuses, by Joe Patrice, Above The Law Blog
Litigators get away with a lot of obnoxious stuff during discovery. For better or worse, the pre-trial discovery phase of civil litigation is every lawyer’s opportunity to relive those times when parents leave kids alone for the first time: every slight, disagreement, and jealousy on a slow boil explodes into anarchic back-biting once there’s no authority figure around to enforce civility. Bring on the mean-spirited letters and smack-talking RFAs.
When it comes to depositions, it doesn’t always reach ‘fatboy’ levels, but a federal deposition isn’t a deposition until someone threatens to call the magistrate — though never does.
Which is why this benchslap, where a federal judge levies a sanction straight out of elementary school, is so appropriate….
18 Wednesday Jun 2014
Posted in Attorney Work Product, Attorney-Client Privilege, Discovery, Document Review, E-Discovery, Federal Rules of Discovery, Requests for Production
≈ Comments Off on Bye, Bye Privilege! What Happens When You Take No Reasonable Steps To Prevent Disclosure.
Tags
Attorney Work Product, Attorney-Client Privilege, Discovery, E-Discovery, Inadvertent Production, K&L Gates, Privilege and Confidentiality, Request for Production, Rule 502(B)
Think Fast—But Not Too Fast: Privilege Waived for Failure to Take Reasonable Steps to Prevent Disclosure, published by K&L Gates
First Tech. Capital, Inc. v. JPMorgan Chase N.A., No. 5:12-CV-289-KSF-REW, 2013 WL 7800409 (E.D. Ky. Dec. 10, 2013)
In this case, the court found that privilege was waived where First Technology Capital, Inc. (‘FTC’*), through counsel, failed to take reasonable steps to prevent the inadvertent disclosure of privileged materials. The court’s determination that counsel’s efforts were unreasonable was based, in part, on the speed of the alleged page-by-page review (each document received, on average, only 9.84 seconds of review) and FTC’s failure to produce a privilege log, among other things. . . .
08 Sunday Jun 2014
Posted in Court Rules, Courts, Depositions, Discovery, E-Discovery, Federal District Court Rules, Federal Rules of Discovery, Interrogatories, Preservation, Requests for Admissions, Requests for Production
≈ Comments Off on Proposed Amendments to Federal Civil Procedure Rules Are Close to Approval.
Committee on Rules of Practice and Procedure (“Standing Committee”) Approves Proposed Amendments to Federal Rules of Civil Procedure, by K&L Gates, posted in FEDERAL RULES AMENDMENTS, NEWS & UPDATES.
The amendments to the Federal Rules of Civil Procedure will be finalized sometime in September. -CCE
Last week, the Committee on Rules of Practice and Procedure (the “Standing Committee”) approved proposed amendments to the Federal Rules of Civil Procedure, including the “Duke Rules Package,” addressing Rules 1, 4, 16, 26, 30, 31, 33, and 34 and a rewritten version of Rule 37(e), addressing preservation. The proposed amendments were approved with only two revisions to the proposed Committee Notes for Rules 26(b)(1) (encouraging consideration and use of technology) and 37(e) (clarifying the role of prejudice in subsection (e)(2) of the proposed rule). Meeting minutes reflecting the precise changes to the Committee Notes are not yet available, although the text of the rules as adopted was published in the Standing Committee’s meeting Agenda Book, available here.
The next stop for the proposed amendments is the Judicial Conference, which will consider the proposed amendments at its meeting in September.
24 Saturday May 2014
Posted in Admissibility, Authentication, Depositions, Discovery, Evidence, Federal Rules of Discovery, Federal Rules of Evidence, Interrogatories, Relevance, Requests for Admissions, Requests for Production, Sanctions, Subpoena Duces Tecum, Trial Tips and Techniques
≈ Comments Off on When Discovery Becomes Less About The Merits of the Case And More About Obstruction.
Tags
Boilerplate Objections, Discovery, Litigation and Trial Blog, Matthew Jarvey, Max Kennerly, Meet and Confer, Motion to Compel, Requests for Admission
Boilerplate Objections And “Good Faith” Requirements Are Ruining Civil Discovery, by Max Kennerly, Esq., Litigation and Trial Blog
Please make sure to catch the reference and link to: Matthew Jarvey, “Boilerplate Discovery Objections,” 61 Drake L. Rev. 913 (2013). -CCE
‘If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.’ Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996) (quoting Krueger v. Pelican Prod. Corp., No. CIV-87-2385-A (W.D. Okla. Feb. 24, 1989). . . .
20 Tuesday May 2014
Posted in Discovery, Document Review, E-Discovery, Federal Rules of Discovery
≈ Comments Off on In Discovery, Ask A Silly Question, You’ll Get A Silly Answer.
Tags
bowtielaw blog, Discovery, E-Discovery, E-Mail, ESI, Joshua Gilliland, Requests for Production, Text Messages
Lessons From Drafting Overly Broad Requests, by Joshua Gilliland, Esq., bowtielaw blog
Drafting discovery is an art. While painting in oils or pastels is certainly more colorful than drafting requests in Times New Roman or Ariel, both require thought. And like any masterpiece, drafting a request for production can have its challenges.
A Requesting Party demanded an opposing party produce ‘[a]ll email and text messages sent or received on Mayo email and text messaging accounts.’
The Magistrate Judge found the request to be overly broad. . . .
19 Monday May 2014
Posted in Adobe Acrobat, Authentication, Bates Numbers, Computer Forensics, Databases, Discovery, Document Review, E-Discovery, Emails, Evidence, Federal Judges, Federal Rules of Discovery, Federal Rules of Evidence, Forensic Evidence, Judges, Legal Forms, Legal Technology, Native Format
≈ Comments Off on Craig Ball’s Lawyers’ Guide to Forms of Production.
Tags
Adobe Acrobat, Ball in Your Court, Bates Numbering, Craig Ball, Databases, E-Discovery, E-Mail, ESI, Evidence, Lawyers' Guide to Forms of Production, Native Format, Redaction
A Guide to Forms of Production, by Craig Ball, Ball In Your Court Blog
http://ballinyourcourt.wordpress.com/2014/05/19/a-guide-to-forms-of-production/
Craig Ball’s Lawyers’ Guide to Forms of Production! Although Mr. Ball says there is much he wants to re-organize and rewrite, I can’t wait to dive in. You will find the hyperlink to the Guide when you go to the web site. Thank you, Craig Ball! -CCE
Semiannually, I compile a primer on some key aspect of electronic discovery. In the past, I’ve written on computer forensics, backup systems, metadata and databases. For 2014, I’ve completed the first draft of the Lawyers’ Guide to Forms of Production, intended to serve as a primer on making sensible and cost-effective specifications for production of electronically stored information. It’s the culmination and re-purposing of much that I’ve written on forms heretofore, along with new material extolling the advantages of native and near-native forms.
Reviewing the latest draft, there is much I want to add and re-organize; accordingly, it will be a work-in-progress for months to come. Consider it a “public comment” version. The linked document includes exemplar verbiage for requests and model protocols for your adaption and adoption. I plan to add more forms and examples. . . .
02 Sunday Mar 2014
Posted in Court Rules, Depositions, Discovery, Employment Law, Federal District Court Rules, Federal Rules of Discovery, Video Deposition
≈ Comments Off on Skype For Video Depositions?
Tags
Bow Tie Law’s Blog, Deposition, Discovery Dispute, Federal Rule 26(g), Federal Rules of Discovery, Hernandez v. Hendrix Produce, Joshua Gilliland, Judge G.R. Smith, Meet and Confer, Skype, Video Deposition
“Stop and Think” About Skype for Depositions, by Joshua Gilliland, Bow Tie Law’s Blog
http://bowtielaw.wordpress.com/2014/02/03/another-skyping-judge/
Judge G.R. Smith issued a great reminder that lawyers must ‘stop and think’ when dealing with discovery disputes. This duty is imposed by Rule 26(g) and is ‘an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through Rule 37, and obligates each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.’ Hernandez v. Hendrix Produce, Inc., 2014 U.S. Dist. LEXIS 4837 (S.D. Ga. Jan. 9, 2014) citing Bottoms v. Liberty Life Assur. Co. of Boston, 2011 U.S. Dist. LEXIS 143251, 2011 WL 6181423 at * 4 (D. Colo. Dec. 13, 2011).
The case at issue requiring lawyers to ‘stop and think’ involved the plaintiffs in a farmworker rights lawsuit. Three of the plaintiffs were in Mexico and unable to return to Georgia for their depositions. The Defendants wanted the depositions to be held in Georgia. . . .
