Category Archives: Discovery

Litgation Hold – Too Little Too Late.

25 Thursday Feb 2016

Posted by in Cell Phones, Discovery, E-Discovery, Emails, Emails, Legal Technology, Litigation Hold, Municipal Law, Open Records Act, Preservation, Requests for Production, Sanctions

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Our Nation’s Largest City is Not Immune to eDiscovery Sanctions: eDiscovery Case Law, by Doug Law, eDiscovery daily Blog

http://bit.ly/1Rqmnc0

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. . . .

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Clients – Don’t Wipe That Cell Phone!

06 Saturday Feb 2016

Posted by in Android Phones, Blackberry Phones, Cell Phones, Discovery, E-Discovery, Evidence, Forensic Evidence, iPhones, Legal Technology, Preservation, Sanctions, Spoilation

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Appeals Court Upholds Terminating Sanctions For Wipe of Cell Phone, by Doug Austin, eDiscovery Case Law

http://bit.ly/1K5mzxO

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. . . .

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Witness Preparation for Depositions. How to Say Enough But Not Too Much.

17 Sunday Jan 2016

Posted by in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witnesses

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Witness, Don’t Teach” (in Deposition), by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/1SXtKtl

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. . . .

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Wise Advice on Drafting Definitions and Instructions in Discovery.

17 Sunday Jan 2016

Posted by in Discovery, Federal Rules of Discovery, Interrogatories, Relevance, Requests for Admissions, Requests for Production, Sanctions

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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

https://www.regonline.com/custImages/260000/269600/CLEPresentation102111DraftingDefinitions-Stearns.pdf

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

Gender Discrimination During Deposition Earns Judge’s Benchslap.

16 Saturday Jan 2016

Posted by in Attorney Discipline, Benchslap, Depositions, Discovery, Judges, Legal Ethics, Professional Civility, Rules of Professional Responsibility

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Lawyer Receives Stern Benchslap And Amazing Sanction For Sexist Deposition Comment, by Staci Zaretsky, Above The Law Blog 

http://bit.ly/1RNcs34

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. . . .

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Chief Justice Urges Judges To Impose More Management Over Their Cases.

01 Friday Jan 2016

Posted by in Diligence, Discovery, E-Discovery, Federal Judges, Interrogatories, Judges, Legal Ethics, Requests for Admissions, Requests for Production, Rules of Professional Responsibility

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Chief Justice Wants Less Gamesmanship By Lawyers, by Lyle Denniston, SCOTUSblog

http://bit.ly/1JkhNf7

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. . . .

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Questions About The New Federal Rules Amendments on Discovery? – 3rd of 5-Part Guide.

26 Thursday Nov 2015

Posted by in Court Rules, Courts, Discovery, E-Discovery, Federal District Court Rules, Preservation

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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

http://bit.ly/1NvYTnd

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

Questions About The New Federal Rules Amendments on Discovery? – 2nd of 5-Part Guide.

26 Thursday Nov 2015

Posted by in Admissibility, Concept Search Tools, Court Rules, Courts, Discovery, E-Discovery, Evidence, Federal District Court Rules, Preservation, Rule 16 Conference

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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

http://bit.ly/1jluREF

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.

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Questions About The New Federal Rules Amendments on Discovery? – 1st of 5-Part Guide.

21 Saturday Nov 2015

Posted by in Civil Procedure, Discovery, E-Discovery, Federal Civil Procedure, Preservation

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 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

http://tinyurl.com/o72ub69

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 . . . .

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Were Deleted Emails A Failure to Preserve?

15 Sunday Nov 2015

Posted by in Discovery, E-Discovery, Emails, Preservation

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Prejudice and to Avoid “Confusing the Issues,” by Electronic Discovery Law, K&L Gates Blog

http://tinyurl.com/ndmfrlx

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. . . .

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How To Subpoena Social Media – Updated 2015.

08 Sunday Nov 2015

Posted by in Discovery, Social Media, Subpoena Duces Tecum

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Social Media Subpoena Guide 2015 Edition, posted by Keith Lee, Associate’sMind Blog

http://associatesmind.com/2015/01/26/social-media-subpoena-guide-2015-edition/

I cannot explain why people lose their sense of discretion and decorum on social media. I just know that it often happens. In some areas of law, Facebook is a lawyer’s gift from God. How many of you routinely tell your clients to close their social media websites and/or delete incriminating photos and posts?

If you get lucky, the person who swore in a deposition that he never drinks alcohol has a picture on his or a friend’s Facebook page in which he is chugging a beer with a big thumb’s up. Don’t you just love it when that happens? Ah, good times.

But it is not always easy to get your sticky fingers on the smoking gun. Keith Lee has some good advice for finding and obtaining social media, which he has generously shared with us. -CCE

I initially wrote about how to subpoena various social media sites back in 2011. Seeing as it has been a few years I thought it was time to provide an update.

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Defendant Ordered by Court to Produce Gap-Period Emails on Backup Tapes.

04 Sunday Oct 2015

Posted by 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

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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.’ . . .

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Oklahoma’s Discovery Code Changing to Add E-Discovery Master.

29 Tuesday Sep 2015

Posted by in Discovery, E-Discovery, E-Discovery Master, Evidence

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New Discovery Master Law Takes Effect on Nov. 1, 2015, by James C. Milton, Oklahoma Bar Journal – Sept. 26, 2015, Vol. 86, No. 25.-

(Originally published in the Oklahoma Bar Journal – Sept. 12, 2015 – Vol. 86, No. 24)

http://www.okbar.org/members/BarJournal/archive2015/SeptArchive15/OBJ8624Milton.aspx

Effective on Nov. 1, 2015, the Oklahoma Discovery Code will include a new statute that provides for discovery masters in civil litigation.1 The new statute will be codified as Section 3225.1 of the Discovery Code.

Section 3225.1 is based in large part on Rule 53 of the Federal Rules of Civil Procedure..2 Rule 53 allows for federal courts to appoint ‘judicial masters’ to address complex issues in exceptional cases. . . .

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Social Media – E-Discovery Waiting To Be Plucked.

19 Saturday Sep 2015

Posted by in E-Discovery, Evidence, Legal Ethics, Social Media

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Social Media E-Discovery: Its Time Is Here, by Dera J. Nevin, Canadian Lawyer (with hat tip to Allen Mihecoby, CLAS, RP®)

http://www.canadianlawyermag.com/5732/Social-media-e-discovery-its-time-is-here.html

Social media is an important source of discovery in an increasing range of cases and can often yield the most important evidence. Social media and its derivatives are prevalent with many people using social media as their dominant communications channel, preferring some in-app messaging tools to e-mail. Corporations, too, are using these media to target and communicate with their customers. Ignore these sources and you leave potentially game-changing evidence on the table. . . .

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Current List of Each State’s E-Discovery Rules.

19 Wednesday Aug 2015

Posted by in Civil Procedure, Court Rules, Courts, Discovery, E-Discovery

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Current Listing of States That Have Enacted E-Discovery Rules, Electronic Discovery Law, K&L Gates Blog

http://www.ediscoverylaw.com/state-district-court-rules/

K&L Gates keeps this list of state’s e-discovery rules constantly updated. I love one-stop clicking and appreciate the reminder to look for your judge’s local rules, forms, and guidelines. -CCE

More and more states are adopting statutes and court rules addressing the discovery of electronically stored information. Here is a current list with links to the relevant provisions. Please note also that many judges have created their own forms or have crafted their own preferred protocols for e-discovery. These are generally available on the website of the individual judge and care should be taken to ensure you are aware of any such forms or guidelines in any court you may appear in. . . .

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2,941 Page Privilege Log? Better Make It Good.

10 Monday Aug 2015

Posted by in Attorney Work Product, Attorney-Client Privilege, Discovery, Federal Rules of Discovery, Privilege and Confidentiality, Privilege Log, Requests for Production

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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

http://tinyurl.com/nwmrx27

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. . . .

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Privilege Logs.

10 Monday Aug 2015

Posted by in Attorney Work Product, Attorney-Client Privilege, Discovery, Federal Rules of Discovery, Privilege and Confidentiality, Privilege Log, Requests for Production

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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. . . .

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Is It Okay To Wipe A Former Employee’s Computer?

04 Tuesday Aug 2015

Posted by in Discovery, E-Discovery, Evidence, Forensic Evidence, Law Office Management, Litigation Hold, Office Procedures, Preservation, Technology

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Court Denies Request for Sanctions for Routine Deletion of Files of Departed Employees: eDiscovery Case Law, by Doug Austin, eDiscoverydaily

http://tinyurl.com/p2jfsqe

For many employers, it is normal procedure to “wipe” the computer of recently former employees after removing anything not already stored on the employer’s network. Is this a bad practice? -CCE

In Charvat et al. v. Valente et al., 12-5746 (N.D. Ill. July 1, 2015), Illinois Magistrate Judge Mary M. Rowland denied the plaintiff’s request for spoliation sanctions for the defendant’s admitted destruction of computer files belonging to two departed employees, finding that the plaintiff did not provide any evidence that the defendant acted in bad faith. . . .

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Deduplication – Craig Ball Takes Us Deeper Into The Belly of The E-Discovery Beast.

08 Wednesday Jul 2015

Posted by in Discovery, E-Discovery, Native Format

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Deduplication: Why Computers See Differences in Files that Look Alike to You, by Craig Ball, Ball In Your Court

http://tinyurl.com/oe5xd63

An employee of an e-discovery service provider asked me to help him explain to his boss why deduplication works well for native files but frequently fails when applied to TIFF images.  The question intrigued me because it requires we dip our toes into the shallow end of cryptographic hashing and dispel a common misconception about electronic documents. . . .

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The ABC’s of Fielding Data.

29 Monday Jun 2015

Posted by in Computer Forensics, Discovery, E-Discovery, Fielded Data, Legal Technology, Metadata, Native Format

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The Virtues of Fielding, by Craig Ball, Ball In Your Court

https://ballinyourcourt.wordpress.com/2015/06/29/the-virtues-of-fielding/

I am a member of the typewriter generation. With pencil and ink, we stored information on paper and termed them ‘documents.’ Not surprisingly, members of my generation tend to think of stored information in terms of tangible and authoritative things we persist in calling ‘documents.’ But unlike use of the word ‘folder’ to describe a data directory (despite the absence any folded thing) or the quaint shutter click made by camera phones (despite the absence of shutters), couching requests for information in discovery as demands for documents is not harmless skeuomorphism.  The outmoded thinking that electronically stored information items are just electronic paper documents makes e-discovery more difficult and costly. It’s a mindset that hampers legal professionals as they strive toward competence in e-discovery.

Does clinging to the notion of ‘document’ really hold us back? . . .

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Spoiled Evidence On Both Sides – What Else Could Go Wrong?

24 Wednesday Jun 2015

Posted by in Depositions, Discovery, E-Discovery, Evidence, Intellectual Property, Preservation, Spoilation

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Court Finds Wife Liable for Agent-Husband’s Intentional Deletions, Recommends Default Judgment, by K&L Gates in CASE SUMMARIES

http://tinyurl.com/o9p3kmn

Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL-MJD, 2015 WL 2371597 (S.D. Ind. May 18, 2015)

In this copyright infringement case, the court found that Defendants ‘spoiled evidence, committed perjury, and failed to discharge their duties to conduct discovery reasonably and in good faith’ and recommended default judgment. Notably, in addition to more familiar issues surrounding the topic of spoliation, the court’s opinion addressed the question of whether spoliation occurs when information is still recoverable (yes) and the propriety of imputing an agent’s bad acts in discovery where, as in this case, Defendant Wife ‘left it to her agent—her husband—to respond to Plaintiff’s document requests.’ . . .

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Why eDiscovery And Legal Technology Should Be Required In Law Schools.

07 Sunday Jun 2015

Posted by in Discovery, E-Discovery, Legal Technology

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Law Schools And The Need To Teach Ediscovery Practice Skills, by James B. Levy, Legal Skills Prof Blog

http://tinyurl.com/nzhczx6

While some state bar associations’ ethical opinions are requiring its members to keep up to date with legal technology, law schools do not seem to have gotten on board. If lawyers already practicing are considered behind if they do not aggressively incorporate legal technology in their practice, shouldn’t law schools be leading rather than following? Paralegal programs – are you paying attention? -CCE

Though many legal practice areas have been in decline since the Great Recession, the demand for eDiscovery services has skyrocketed. This post from Bloomberg’s Big Law Business blog says that the law school curriculum needs to likewise evolve by providing more training opportunities that teach the next generation of lawyers these vital practice skills . . . .

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Judge Uses The “Mommy Voice.”

25 Monday May 2015

Posted by in Depositions, Discovery, Federal Rules of Discovery, Relevance, Requests for Production, Subpoena Duces Tecum

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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? . . .

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E-Discovery Red Herring?

20 Wednesday May 2015

Posted by in Discovery, E-Discovery, Privilege and Confidentiality

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Riley Cell Phone Decision a Red Herring in E-Discovery, by Craig Ball, Ball In Your Court Blog

https://ballinyourcourt.wordpress.com/2015/05/20/riley-cell-phone-decision-a-red-herring-in-e-discovery/

Yesterday’s post on the Digital Strata blog reported on a 2014 order of a U.S. District Court in Connecticut that applied the U.S. Supreme Court’s decision in Riley v. California, 573 U.S. _, 134 S. Ct. 2473 (2014) to civil discovery. I think the Court’s reliance on Riley is misplaced in the civil discovery context; not just because Riley involved state action, but because civil discovery affords a litigant greater protection from oppression and intrusion than that attendant to the search and seizure in Riley. . . .

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Angry Judge Sanctions Defendants For E-Discovery Spoilation.

19 Tuesday May 2015

Posted by in Discovery, E-Discovery, Preservation, Sanctions

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Tired of the “Crap”, Court Sanctions Investors and Lawyers for Several Instances of Spoliation, by Doug Austin, eDiscoverydaily Blog

http://tinyurl.com/k3d74yu

In Clear-View Technologies, Inc., v. Rasnick et al, 5:13-cv-02744-BLF (N.D. Cal. May 13, 2015), California Magistrate Judge Paul S. Grewal sanctioned the defendants $212,320 and also granted a permissive adverse jury instruction that allows the presumption that the defendants’ spoliated documents due to a series of ‘transgressions’ by the defendants and their prior counsel.

You’ve got to love an order that begins this way:

‘Deployment of ‘Crap Cleaner’ software—with a motion to compel pending. Lost media with relevant documents. False certification that document production was complete. Failure to take any steps to preserve or collect relevant documents for two years after discussing this very suit. Any one of these transgressions by {the defendants} and their prior counsel might justify sanctions. Taken together, there can be no doubt.’ . . .

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