Wise Advice on Drafting Definitions and Instructions in Discovery.

17 Sunday Jan 2016

Posted by Celia C. Elwell, RP 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

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

Judge Uses The “Mommy Voice.”

25 Monday May 2015

Posted by Celia C. Elwell, RP 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? . . .

Continue reading →

Craig Ball on E-Discovery, Litigation Holds, and Evidence Preservation.

20 Tuesday Jan 2015

Posted by Celia C. Elwell, RP in Discovery, Document Review, E-Discovery, Litigation Hold, Preservation, Relevance, Requests for Production

≈ Comments Off on Craig Ball on E-Discovery, Litigation Holds, and Evidence Preservation.

Tags

Ball in Your Court, Craig Ball, Discovery, E-Disocvery, E-Mail, ESI, Litigation Hold, Preservation, Request for Production of Documents

The Path to E-Mail Production II, Revisited, by Craig Ball, Ball In Your Court

http://tinyurl.com/q4uozfh

This is the seventh 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.

The Path to Production: Retention Policies That Work

(Part II of IV)

[Originally published in Law Technology News, November 2005]

We continue down the path to production of electronic mail. Yesterday, I reminded you to look beyond the e-mail server to the many other places e-mail hides. Now, having identified the evidence, we’re obliged to protect it from deletion, alteration and corruption.

Preservation
Anticipation of a claim is all that’s required to trigger a duty to preserve potentially relevant evidence, including fragile, ever-changing electronic data. Preservation allows backtracking on the path to production, but fail to preserve evidence and you’ve burned your bridges.

Complicating our preservation effort is the autonomy afforded e-mail users. They create quirky folder structures, commingle personal and business communications and — most dangerous of all — control deletion and retention of messages.

Best practices dictate that we instruct e-mail custodians to retain potentially relevant messages and that we regularly convey to them sufficient information to assess relevance in a consistent manner. In real life, hold directives alone are insufficient. Users find it irresistibly easy to delete data, so anticipate human frailty and act to protect evidence from spoliation at the hands of those inclined to destroy it. Don’t leave the fox guarding the henhouse. . . .

Continue reading →