Clients – Don’t Wipe That Cell Phone!

06 Saturday Feb 2016

Posted by Celia C. Elwell, RP 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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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

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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

Ignore Duty For Litigation Holds At Your Peril.

15 Wednesday Oct 2014

Posted by Celia C. Elwell, RP in Discovery, E-Discovery, Employment Law, Litigation Hold, Preservation, Race Discrimination, Sanctions, U.S. District Court for the Southern District of New York

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Andrew P. Sherrod, Discrimination, E-Discovery, EEOC, Employment Law, Evidence, Inside Counsel Magazine, Litigation Hold

Don’t Hit That Delete Button: An Update On Litigation Holds For Employment Claims, by Andrew P. Sherrod, Inside Counsel Magazine

http://tinyurl.com/ka6thgo

By now, most companies are — or at least should be — well aware of their obligation to preserve relevant documents and electronic information when they reasonably anticipate litigation. This duty can arise in many contexts, but employment complaints are a prime example. Despite the multitude of judicial decisions and articles on the subject, companies continue to hinder their defense of employment claims by failing to undertake appropriate preservation measures.

The consequences of failing to implement and monitor a litigation hold in response to an employment claim were reinforced in a recent decision from the United States District Court for the Southern District of New York in Hawley v. Mphasis Corp.

In Hawley, an employee of the defendant company claimed that he was discriminated against on the basis of his ethnicity in a number of ways during the course of his employment. The employee filed an EEOC charge of race and national origin discrimination in September 2009. The company terminated the employee in November 2009, and he thereafter filed a second EEOC charge, which was mailed to the company in December 2009. The employee then filed a discrimination suit in January 2012 against the company under 42 U.S.C. § 1981 and state civil rights laws.

During his employment, the plaintiff received a company-issued laptop computer on which he was required to perform his work. After his termination, the employee returned the computer to the company in December 2009. The next month, the company reassigned the computer to another employee, permanently deleting all of the plaintiff’s data.

The company also waited until April 2012 — almost three months after the filing of the plaintiff employee’s lawsuit and more than two years after his EEOC charges — to instruct the plaintiff’s supervisor and several other employees to preserve all documents and communications related to the plaintiff. . . .

Federal Judge Benchslaps Counsel For Discovery Abuse In A Very Special Way.

03 Sunday Aug 2014

Posted by Celia C. Elwell, RP in Depositions, Discovery, Federal Rules of Discovery, Objections, Sanctions, U.S. District Court of the Northern District of Iowa

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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

http://tinyurl.com/k9srego

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….

When Discovery Becomes Less About The Merits of the Case And More About Obstruction.

24 Saturday May 2014

Posted by Celia C. Elwell, RP 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

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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

http://tinyurl.com/m7wk9mz

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). . . .

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

21 Saturday Dec 2013

Posted by Celia C. Elwell, RP 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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E-Discovery, Electronic discovery, Gareth Evans, Gibson Dunn, Judge David Herndon, Law Technology News, Mobile Phones, Sanctions, Text Messages, United States District Court for the Southern District of Illinois

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.