Tag Archives: Bow Tie Law Blog

For E-Discovery Requests, The Court Says It’s Not Enough To Say Nothing Was Found.

11 Tuesday Oct 2016

Posted by in Discovery, Document Review, E-Discovery, Emails, Federal Rules of Discovery, Preservation, Requests for Production, Subpoena Duces Tecum

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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

Don’t Challenge Under Rule 34 If You Cannot Explain Why.

25 Thursday Feb 2016

Posted by in Discovery, Document Review, Federal Rules of Discovery, Recent Links and Articles

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Attack the Form of Production, by Joshua Gilliland, Esq., Bow Tie Law Blog

https://bowtielaw.wordpress.com/2015/09/22/be-specific-if-you-are-going-to-attack-the-form-of-production/

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. . . .

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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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How Many Types of Metadata Can You Name?

27 Saturday Jun 2015

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

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Production of System Metadata, by Joshua Gilliland, Bow Tie Law Blog

https://bowtielaw.wordpress.com/2015/06/27/production-of-system-metadata/

Have you ever been bit because you ignored metadata? Hands?

The legal profession is embracing technology to the point where it is considered a lawyer’s duty to know it, understand it, and use it. Paralegals and other legal staff, I am talking to you too.

Do you know what metadata is or how many types there are? This post is a good illustration of why all types of metadata should be on your radar. -CCE

A New York state judge confronted the issue of producing system metadata in a medical malpractice case where the plaintiff had to have a foot amputated due to post surgical complications. Vargas v Lee (Sup.Ct.) 2015 NY Slip Op 31048(U), ¶¶ 3-5. The case is direct and thoughtful on the issue of system metadata. . . .

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Imaging A Hard Drive = Making A Copy And Within Plain Meaning Of Taxation Of Costs.

19 Thursday Mar 2015

Posted by in Attorney Fees and Costs, Depositions, Discovery, E-Discovery, Hard Drives, Taxation of Costs, Video Deposition

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Stating Reality: Imaging a Hard Drive Makes a Copy, by Josh Gilliland, Esq., Bow Tie Law

https://bowtielaw.wordpress.com/2015/03/19/stating-reality-imaging-a-hard-drive-makes-a-copy/

Taxation of cost cases do not generally have happy endings for recovering eDiscovery costs. The United States Court of Appeals for the Sixth Circuit issued a very important opinion on March 17, 2015 well grounded in the reality of civil litigation and the law where eDiscovery costs were recovered.

It also takes a swing at Race Tires, which is always a welcome read.

The Court of Appeals held that the cost of video deposition synchronization and transcript were properly taxed. Colosi v. Jones Lang LaSalle Ams., Inc., 2015 U.S.  App. LEXIS 4184, 2-3 (6th Cir. Ohio 2015). The Trial Court had determined the synchronized video deposition was ‘reasonably necessary’ and the opposing party never explained how the costs were either unreasonable or unnecessary. Id.

For anyone who has conducted deposition review, this is good news. I have spent many hours reviewing depositions and video depositions. ‘Reasonably necessary’ is an understatement. Synced video depos allow you to understand the context of the testimony. A simple question and answer in a transcript can look harmless, but if the video shows the deponent turning bright red, biting his lip, and answering the question with his teeth clinched, you know that testimony is important. . . .

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Bad Stipulations To E-Discovery – Just Don’t.

11 Thursday Sep 2014

Posted by in Discovery, E-Discovery, Legal Technology, Requests for Production

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Don’t Stipulate to Not Follow the Form of Production Rules, by Joshua Gilliland, Esq., Bow Tie Law Blog

 http://tinyurl.com/kxr9gt5

Here is my advice: NEVER agree to a stipulation to produce native files when “it is more practical to do so” and agree to productions in PAPER, PDF’s, or TIFFs. Melian Labs v. Triology LLC, 2014 U.S. Dist. LEXIS 124343 (N.D. Cal.Sept. 4, 2014).

That is what happened in Melian Labs v. Triology LLC. It reads like a personal Sum of All Fears for anyone who has spent years working with ESI, because the Court denied motions to compel email and spreadsheets in native files with metadata, because of the parties’ Rule 26(f) stipulation. . . .

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?