Category Archives: Discovery

Changes Expected This Year in Pennsylvania Civil Litigation.

05 Sunday Jan 2014

Posted by in Construction, Expert Witness, Legal Technology, Litigation, Medical Malpractice, Motor Vehicle, Product Liability, Technology, Trial Tips and Techniques

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Changes Anticipated for Pa. Civil Litigation Jurisprudence in 2014, by Daniel E. Cummins, TORT TALK, republished from Pennsylvania Law Weekly

http://www.torttalk.com/2014/01/article-changes-anticipated-for-pa.html

Currently, there are a number of important civil litigation issues pending before the Pennsylvania appellate courts, the results of which could significantly impact the way litigators practice in the years ahead. Moreover, notable changes over the past year in Pennsylvania statutory law, as well as the Rules of Professional Responsibility, are expected to have a significant impact.

Ralph Losey’s Top E-Discovery Case of 2013.

29 Sunday Dec 2013

Posted by in 5th Circuit Court of Appeals, Discovery, E-Discovery, Preservation, Sanctions, Texas Supreme Court

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Announcing My Top e-Discovery Case of 2013, by Ralph Losey, e-Discovery Team® Blog

Seal for the United States Fifth Circuit court...

http://tinyurl.com/mqrqv3d

The year 2013 has been a relatively lackluster one for e-discovery case law. Then, on November 12, 2013, the Fifth Circuit Court of Appeals rendered a rare appellate order on sanctions and e-discovery abuse.

Counsel Scalded by Federal District Court’s E-Discovery Opinion.

21 Saturday Dec 2013

Posted by in Cell Phones, E-Discovery, Evidence, Federal District Court Rules, Legal Technology, Litigation Hold, Requests for Production, Sanctions, Sanctions, Trial Tips and Techniques

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Perils of E-Discovery Reflected in Sanctions Opinion, by Gareth Evans, a litigation partner at Gibson Dunn, Law Technology News

http://tinyurl.com/kcksw5v

Lest anyone think that hair-raising e-discovery sanctions opinions are a thing of the past, U.S. District Judge David Herndon of the Southern District of Illinois issued a blistering 51-page opinion (PDF) imposing nearly $1 million in punitive sanctions on the defendants in In re Pradaxa Products Liability Litigation on Dec. 9, 2013, and indicated that more sanctions are almost certainly on the way.

The case is an example of how electronic data discovery generally, and implementing legal holds in particular, can be fraught with peril.

Increase Credibility With The Court By Writing Accurate Facts And Law.

18 Wednesday Dec 2013

Posted by in Brief Writing, Citations, Discovery, Evidence, Legal Writing, Motions

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Commandment #7–Don’t “Fudge” the Facts or the Law, by Megan E. Boyd, (Lady) Legal Writer

http://tinyurl.com/n6qmvqe

Ms. Boyd excels at explaining how to present facts and applicable law to your client’s best advantage. She reminds us to use citations to depositions, discovery responses, and other resources to emphasize credibility, a detail sometimes overlooked. Definitely worth a read. – CCE

Court Questions Party’s Unexplained Lack Of Cooperation In E- Discovery Production.

13 Friday Dec 2013

Posted by in Discovery, E-Discovery, Intellectual Property, Requests for Production, Trial Tips and Techniques

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Court Declines to Compel Identification of Seed Set, Encourages Cooperation, published by K&L Gates

http://tinyurl.com/leagmr6

In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391, 2013 WL 6405156 (N.D. Ind. Aug, 21, 2013).

Previously in this case, the court ruled that Biomet need not start again on its document production for which it utilized both keyword searching and predictive coding.  (See summary here.)  In this opinion, the court addressed the Steering Committee’s request that the discoverable documents used in Biomet’s seed set be identified and declined to compel such identification.  Despite this, the court noted Biomet’s ‘unexplained lack of cooperation’and urged Biomet to ‘re-think its refusal.’

Legal Rules Needed For Police To Allow Access To Your Cell Phone Data.

08 Sunday Dec 2013

Posted by in Android Phones, Cell Phones, Criminal Law, Evidence, iPhones, Privacy, Subpoenas

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Cell Data Dumps: A Legally Fuzzy Area, by John Kelly and Susanne Cervenka, USA TODAY

http://tinyurl.com/k9kudm2

The rules governing how police obtain and use data from cellphones is a target on the move, as state legislatures act to protect residents’ privacy and real-life criminal cases wend their way through state and federal courts.

Teaching Metadata and ABA Metadata Ethics Opinion Chart.

07 Saturday Dec 2013

Posted by in Legal Ethics, Legal Technology, Metadata, Research

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Teaching Metadata As Part Of Legal Research, by Shawn Friend, RIPS Law Librarian Blog

http://tinyurl.com/kgbsmb8

Please note the ABA Chart in the quote below. If you have trouble with the link, try:  http://tinyurl.com/4fld5lt. The chart is definitely worth a bookmark. -CCE

This issue has been around for some time. The ABA has formal ethics opinions on the release of and use of metadata. There is a compiled chart of action taken on metadata by the state bars or ethics commissions.

Was It Appropriate to Produce Word Documents as PDF Files?

06 Friday Dec 2013

Posted by in Adobe Acrobat, E-Discovery, Federal District Court Rules, Legal Technology, Metadata, Native Format, Requests for Production, Trial Tips and Techniques, Word

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Who Knew What When About the Form of Production, by Joshua Gilliland, Esq., Bow Tie Law Blog

http://bowtielaw.wordpress.com/2013/12/06/who-knew-what-when-about-the-form-of-production/

Magistrate Judge William Hussmann put a new spin on form of production analysis in Crissen v. Gupta: What form was discovery in and when was it in that form?

Craig Ball Answers His Mail.

06 Friday Dec 2013

Posted by in E-Discovery, Emails, Evidence, Forensic Evidence, Legal Technology, Metadata, Trial Tips and Techniques

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Good Questions!, by Craig Ball, Ball in Your Court Blog

http://ballinyourcourt.wordpress.com/2013/12/06/good-questions/

As always, Craig Ball delivers. Great answers to e-discovery terminology and best practices. -CCE

Feel the Need For A Kindergarten Refresher? Judge Sam Sparks Arranges Opportunity for Unfortunate Counsel.

03 Tuesday Dec 2013

Posted by in Court Rules, Discovery, Judges, Sanctions, Subpoenas

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Judge Defends “Kindergarten” Order, by Nathan Koppel, Wall Street Journal Law Blog

http://blogs.wsj.com/law/2011/09/27/austin-judge-defends-his-kindergarten-order/

Changes To Federal Subpoena Amendments Effective December 1, 2013.

28 Thursday Nov 2013

Posted by in Discovery, Federal District Court Rules, Subpoenas

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The Streamlined Subpoena Power under Amended Federal Rule of Civil Procedure 45 – Effective December 1, 2013, Barring Congressional Action, by Tony Lathrop, Litigation Blog

http://tinyurl.com/luyjbu4

 On December 1, 2013, some of the most long-awaited changes to the Civil Rules will take effect – the proposed amendments to Rule 45, which governs the use of subpoenas in federal civil actions.

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The major changes to Rule 45 include: (1) simplifying the rules regarding the court issuing a subpoena, (2) highlighting the notice requirements for document-only subpoenas, (3) clarifying the circumstances under which an officer of a party may be compelled to testify at trial, and (4) permitting the transfer of motions regarding enforcement of a subpoena.  We highlight the substance of these changes below, and provide a brief update regarding the status of the Discovery Amendments.

Excellent Reasons To Use Synchronized Video Depositions.

26 Tuesday Nov 2013

Posted by in Depositions, Discovery

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Why Synchronize Video Depositions?, by Michael Skrzypek and Chris Ritter, The Trial War Room Handbook Blog

http://tinyurl.com/oznds82

 

We believe, as a general principle, that if it is worth having a deposition videotaped, it is worth having it synced. This process matches the video to the transcript and allows you to search for words within the video, as if it were a text document. This search functionality, in turn, allows you to make video clips quickly, because you can immediately find any word in the video simply by clicking on the transcript. Video clips can be used for impeaching live witnesses or they can be played in lieu of live testimony if a witness is either a party witness or outside the subpoena range and cannot be compelled to testify at trial.

Thorough Analysis of Attorney-Client Privilege and Attorney Work Doctrine.

25 Monday Nov 2013

Posted by in Attorney Work Product, Attorney-Client Privilege, Discovery, Requests for Production

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Federal Middle District Magistrate Judge Mehalchick Addresses Attorney-Client Privilege and Attorney Work Product Doctrine in Discovery Dispute, by Daniel E. Cummins, TORT TALK

http://tinyurl.com/kw7cdbl

The case before Judge Mehalchick, entitled Dempsey v. Bucknell University, No. 4:11-CV-1679 (M.D.Pa. Oct. 7, 2013 Mehalchick, M.J.), arose out of a breach of contract claim filed by a student against the university relative to student conduct hearings held.  At issue were certain documents withheld from discovery by the plaintiff in response to the defendant’s Rule 34 discovery requests on the grounds of the attorney-client privilege and the attorney work product doctrine.

When You Want Fast and Cheap, Adobe Acrobat Does the Trick in a Pinch.

24 Sunday Nov 2013

Posted by in Adobe Acrobat, Databases, Discovery, E-Discovery, Emails, Evidence, Legal Technology, Pre-Trial, Trial Tips and Techniques

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Acrobat to the Rescue: Searching Unsearchable Productions, by Craig Ball, Ball In Your Court Blog

http://tinyurl.com/paxgrfn

Trial of Historical Patent for Common Web Encryption of SSL in East Texas.

24 Sunday Nov 2013

Posted by in E-Discovery, Evidence, Intellectual Property, Legal Technology, Patent Law, Texas Supreme Court, Trial Tips and Techniques

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Newegg on trial: Mystery company TQP rewrites the history of encryption, by Joe Mullin, Law & Disorder/Civilization & Discontents (with hat tip to Dennis Crouch’s Patently-O!)

http://tinyurl.com/

The story of Michael Jones, his mysterious invention, and the massive patent enforcer he’s working with is finally coming out at a patent trial underway in this small East Texas town.

Jones’ patent, now owned by famed patent enforcer Erich Spangenberg, has scared corporate America into writing one hefty check after another to avoid a trial just like this one. He and his lawyers say the patent covers the common web encryption scheme of SSL combined with the RC4 algorithm. The sums of those checks were revealed in court here on Tuesday when a TQP attorney displayed to the jury a spreadsheet with many of the payments.

Court Denies Facebook Discovery Requests by Both Parties.

23 Saturday Nov 2013

Posted by in Discovery, Evidence, Legal Technology, Personal Injury, Requests for Production, Trial Tips and Techniques

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Facebook logo Español: Logotipo de Facebook Fr...

Judge Wettick Rules on Facebook Discovery Issues, by Daniel E. Cummins, TORT TALK

http://tinyurl.com/c8p3snr

After providing a detailed review of the issue over a 22 paged Opinion, which includes a background on Facebook itself and a review of decisions from both within Pennsylvania and from outside jurisdictions, Judge Wettick ruled that both the Plaintiff’s and the Defendant’s motions to compel access to the other’s Facebook pages would be denied in this motor vehicle accident litigation.

Judge Sparks on Fire — Again.

23 Saturday Nov 2013

Posted by in Depositions, Discovery, Judges, Legal Writing, Subpoenas, Texas Supreme Court

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Benchslap of the Day: Judge Sparks Burns More Attorneys , by By David Lat, Above the Law

http://tinyurl.com/45y5v3z

Mr. Lat shared this excerpt from the Judge’s Order:

[J]udge Sparks invited lawyers to a hearing that he referred to as a ‘kindergarten party.’ According to the ‘invitation’ — er, order — ‘[t]he party will feature many exciting and informative lessons, including… how to enter into reasonable agreements about deposition dates [and] how to limit depositions to reasonable subject matter.’ The event is aimed at lawyers who ‘are unable to practice law at the level of a first year law student.’

Court Says E-Discovery Search is “Easier Said Than Done”

17 Sunday Nov 2013

Posted by in Discovery, E-Discovery, Evidence, Federal District Court Rules, Legal Technology, Trial Tips and Techniques

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Triangulating Discovery Productions, by Joshua Gilliland, Esq., BowTie Blog

http://tinyurl.com/key6ugd

 Judge William Orrick summed up a basic truth of eDiscovery: In the age of electronically-stored information (“ESI”), production of all relevant, not privileged and reasonably accessible documents in a company’s custody and control is easier said than done. Banas v. Volcano Corp., 2013 U.S. Dist. LEXIS 144139, at *5 (N.D. Cal. Oct. 4, 2013).

Email Preservation of Gmail Can be Tricky and Tedious, But Not Difficult.

17 Sunday Nov 2013

Posted by in Discovery, E-Discovery, Emails, Evidence, Trial Tips and Techniques

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Collecting Gmail for Preservation, by Craig Ball, Ball in Your Court BlogExquisite-gmail red

http://tinyurl.com/mcynpsl

As Mr. Ball points out in this excerpt below, Gmail preservation is tedious, but not difficult:

[T]hough collecting and validating the complete contents of a Gmail account can be tricky and tedious, it’s not all that difficult to do.  Happily, unless you do something really dumb, it’s unlikely that even a botched Gmail collection effort will harm the contents of the account.

The Sedona Conference® Glossary

17 Sunday Nov 2013

Posted by in E-Discovery, Evidence, Glossaries, Legal Technology, Research, Trial Tips and Techniques

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The Sedona Conference® Glossary, The Sedona Conference®  (Reproduced with permission by Richard Braman.)

http://perma.cc/0ehp3VwLK8u

The Sedona Conference® is a non-profit organization created in 1997 by Richard Braman. Although it is better known for its work and publications on e-discovery, it addresses many other areas of law. You can find a list of its publications here: https://thesedonaconference.org/publications.

The Sedona Conference® will present its Commentary on Information Governance in a webinar on December 5, 2013. Information about all upcoming events can be found at https://thesedonaconference.org/conferences.

 

 

Where Plaintiff Knew Likelihood of Possible Litigation, Magistrate Judge Sanctions Plaintiff for Inexcusable Failure to Issue Litigation Hold.

09 Saturday Nov 2013

Posted by in Contract Law, Discovery, E-Discovery, Litigation Hold, Sanctions, Trial Tips and Techniques

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Law, Justice, Legislative, Legal force, Force ...

Plaintiff in Diaper Lawsuit Hit with Adverse Inference to Remedy Spoliation from Failure to Issue Legal Hold, by Legal Pro Blog

http://bit.ly/1hoswqk

Billionaire Hedge Fund Titan Stumbles Over Questions About Insider Trading in Video Deposition

06 Wednesday Nov 2013

Posted by in Corporate Law, Depositions, Discovery, Evidence, Fraud, SEC, Trial Tips and Techniques

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Seal of the U.S. Securities and Exchange Commi...

Exclusive: Watch Billionaire Steven Cohen Stumble Over Insider Trading Rules, by Nick Verbitsky, Martin Smith, and Dan Sugarman, FRONTLINE

http://to.pbs.org/188ekb9

In a never-before-published video, hedge fund titan Steven A. Cohen, whose firm this week agreed to plead guilty to securities fraud, describes federal securities laws as “vague,” and asks for an explanation of the basic Securities and Exchange Commission rule that prohibits insider trading.

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The video offers a rare glimpse of the secretive billionaire investor at the center of the biggest insider trading prosecution in U.S. history talking about the very issues that have put him and his firm under such intense scrutiny.

Resources from the Offices of the United States Attorney . . . and more.

02 Saturday Nov 2013

Posted by in Criminal Law, Discovery, Federal Law, Fraud, References, Research, Trial Tips and Techniques

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Resources, Offices of the United States Attorney
http://perma.cc/0pU5ocUruhw

FOIA/Privacy Act Requests – “How to” submit FOIA requests
http://perma.cc/0xyPEK7KcCN

FOIA Library – Available to public about office’s operations
http://perma.cc/07JeT6GjPPp

Annual Statistical Reports – Accomplishments for each fiscal year
http://perma.cc/09vkJheop6X

Victim’s Rights Ombudsman – Complaints filed against DOJ employees
http://perma.cc/07fbNaXZcka

United States Attorney’s Bulletin – Legal or technical topics
http://perma.cc/0QdV5c8XtUK

United States Attorney’s Manual – The official handbook
http://perma.cc/0djGLTsgpwy

This is a sample of the great information at this website. See more at Priority Areas (http://perma.cc/0ssbcTres9kl) and Justice 101 (http://perma.cc/0B27rPGVtMV). CCE

A Discussion of the Burdens of Preserving E-Discovery

27 Sunday Oct 2013

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

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E-Discovery: Relieving The Burdens Of Preservation, The Editor interviews Brian H. Pandya, Partner, Wiley Rein LLP, The Metropolitan Corporate Counsel
http://bit.ly/1c5fVG3

Please take particular note the linked articles on e-discovery at the end of the interview. CCE

AHIMA Concerned About Proposed E-Discovery Rule Changes

27 Sunday Oct 2013

Posted by in Court Rules, Discovery, E-Discovery, Health Law

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AHIMA Comments on Proposed Changes to Federal E-Discovery Rules,iHealthBeat
http://bit.ly/1aO1nVV