04 Sunday Nov 2018
Posted in Discovery, Motion to Compel
≈ Comments Off on Be A Discovery Ace.
6 Keys to Acing Discovery, by Katherine A. Hopkins, ABA Journal
Best advice in this well-written post? Know the case law in your Motion to Compel, know the court rules and follow them to the letter, and make it easy for the judge. -CCE
09 Sunday Apr 2017
Posted in Discovery, Medical Records
≈ Comments Off on Obtaining, Organizing, and Analyzing Medical Records.
Tips for Unlocking Medical Records That Will Make a Paralegal’s Job Easier, by Karen Clark, MS, RN; Patricia Iyer, RN, MSN, LNCC; Barbara Levin, BSN, RN, ONC, LNCC; and Mary Ann Shea, JD, BS, RN, Paralegal Today (Originally appeared in print as “Unlocking Medical Records” July/August 2004)
http://paralegaltoday.com/issue_archive/features/feature2_ja04.htm
“How to” on obtaining, organizing, and analyzing medical records, complete with chart for tracking them. -CCE
10 Friday Mar 2017
Posted in Discovery, Expert Witness, Federal Rules of Discovery, Rule 26
≈ Comments Off on A Federal Discovery Rule Quiz.
Tags
Discovery, Expert Witness Discovery, Litigation, Litigation and Trial, Rule 26, The Law Blog of Plaintiff’s Attorney Max Kennerly
Treating Physicians & Non-Retained Expert Witnesses: What Do Parties Have to Disclose Before Trial? by Max Kennerly, Esq., Litigation and Trial, The Law Blog of Plaintiff’s Attorney Max Kennerly
Under Rule 26 of the Federal Rules of Civil Procedure, who is a “non-retained expert witness” and when does that witness need to provide a thorough report rather than a summary report? And what would you expect a judge to say if you do not disclose a non-retained expert witness? As always, it depends. -CCE
28 Tuesday Feb 2017
Posted in Attorney Work Product, Attorney-Client Privilege, Clouds, Confidentiality, Discovery, Dropbox, Emails, Encryption, Evidence, Insurance Defense, Legal Ethics, Legal Technology, Litigation, Passwords, Privilege and Confidentiality, Requests for Production, Sanctions, Subpoena Duces Tecum
≈ Comments Off on Do You Use the Cloud for Document Storage or Production? Read This First.
Tags
ABA Journal, Attorney-Client Privilege, Cloud Storage, Confidentiality, Debra Cassens Weiss, Discovery, File Sharing, Legal Ethics, Work Product Doctrine
Upload To File-Sharing Site Was Like Leaving Legal File On A Bench, Judge Says; Privilege Is Waived, by Debra Cassens Weiss, ABA Journal©
Many use the cloud for file storage and sharing when attachments are too big to send by email. If you use the cloud for storage, file-sharing or transfer, document management, project management, or anything similar, here is a cautionary tale.
The plaintiff insurance company sued the defendants, and sought a declaratory judgment on the defendants’ claim of loss by fire. The plaintiff’s investigator uploaded the entire claims file, including surveillance footage, to a drop-box cloud, Box, Inc. The link had no encryption or password. Access to the link alone allowed anyone to see the file.
He then sent the link by email to the plaintiff insurance company, who sent it to the insurance company’s attorneys, who inadvertently sent it the defendants’ counsel in response to a subpoena duces tecum.
The defendants’ counsel looked at it, but didn’t tell the plaintiff they had seen the privileged and confidential information. Inevitably, the defense sent the information back on a thumb drive to the plaintiff’s attorneys during discovery.
After vigorous arguments about confidentiality, work-product doctrine, attorney-client privilege, and disqualification of defense counsel, the facts and court’s reasoning make this an interesting read. -CCE
20 Saturday Aug 2016
I admit it. I love writing and answering discovery. Too often, I have seen boilerplate discovery asking for something that is not relevant. What a waste. Do not write discovery if you know nothing about the case. Blindly sending boilerplate discovery at best makes you look busy. At worst, it makes you look sloppy.
Discovery rules change. Read and re-read the court rules, local court rules, and the applicable discovery code. At the outset of the case, send your client and the opposing party a litigation hold letter. It does not matter whether either is an individual or a big corporation. Everyone uses email and sends texts on their cell phones.
Before you start writing discovery, you have to be familiar with the facts and law of your client’s case. If you aren’t, read the pleadings. Understand why the plaintiff sued the defendant(s) and what answer the defendant gave to those allegations, including all affirmative defenses. If it helps, make a chart or an outline.
There is a basic way to determine what discovery you should request. First, make a list of what you need to prove your case. We’ll call this List #1. Second, ask yourself whether you have everything needed to prove (or defend) everything on List #1? You won’t. So, third, make a list of what you need – List #2. Your client will provide some of the evidence you need, and you will use discovery to continue your search. Revise List #2 to identify what you need but do not have.
With List #2 as your guide, use discovery to get whatever else you need to prove your case. Each type of discovery is unique. Play to their strengths, which is a post all by itself. Craft your discovery to snag that evidence and identify anyone who is a potential witness and/or document custodian.
A quick word about Definitions and Instructions. Please do not regurgitate the discovery rules. I admit that I do not follow my own advice. I like to remind opposing counsel (and the opposing party) that there is a continuing obligation to supplement discovery. In the hopes that it will save time and aggravation, I also like to add the specific language from the discovery code about when you can object and why.
Define only what is necessary. If there is room for confusion, clarify what is what and who is whom. If the case revolves around specific documents, such as a contract or an event, define it with a simple designation. Your goal is instant recognition of whatever it is. If there are more than one contract or event, make your definitions basic and easy to recognize.
As soon as you receive the responses to your discovery, mark every incomplete answer or objection. Ask for supplementation where needed, and follow up. If an objection is ridiculous or simply obstructive, challenge it while at the same time building exhibits to support a motion to compel (read the rules!). Do not wait until the discovery deadline is looming to stay on top of this.
This one should be a no-brainer, but I still see it every so often. A party objects to the most basic discovery question and refuses to answer. The other side asks a standard, basic interrogatory, and you object. Really? You cannot enforce it. You know it; I know it; and the other side knows it.
Say goodbye to your boilerplate forms. If you use a form, proofread. Know your case. Adapt your discovery plan as the case progresses. These are not all the basics, but it will hopefully give you a running start. -CCE
20 Wednesday Apr 2016
Posted in Discovery, Requests for Production, Subpoena Duces Tecum
≈ Comments Off on Using Discovery to Search for Hidden Assets.
Tags
Asset Search Blog, Discovery, Fred L. Abrams, Hidden Assets, Request for Production of Documents
Using A Production Request In Your Asset Search, by Fred L. Abrams, Asset Search Blog (Fred L. Abrams©2016)
If you are a divorcing spouse, judgment creditor or other litigant, how do you conclusively establish whether or not assets have been hidden from you? You can sometimes reasonably determine this by using legal tools to search for assets. In a pending litigation, these tools might include: depositions; subpoenas; interrogatories; production requests; etc.
Below is part of a production request in the hypothetical case of ‘JOHN DOE.’ The production request seeks access to JOHN DOE’s passport; credit cards; phone records; etc. By analyzing this kind of material one might possibly detect secret offshore bank accounts or other hidden assets. . . .
03 Sunday Apr 2016
Posted in Civil Procedure, Discovery, E-Discovery, Federal Rules of Discovery, Litigation, Research
≈ Comments Off on Craig Ball Presents “Introduction to Discovery in U.S. Civil Litigation.
Introduction to Discovery in U.S. Civil Litigation, by Craig Ball, Ball In Your Court
https://ballinyourcourt.wordpress.com/2016/04/03/introduction-to-discovery-in-u-s-civil-litigation/
Thank you, Craig Ball, for generously sharing your materials. If you have any interest whatsoever in litigation, this is a “must” read. -CCE
I am fortunate to teach electronic discovery and digital evidence in many venues. . . .
All of these entail accompanying written material, so there is a lot of research and writing for the various courses and presentations. Some of my students aren’t lawyers or are law students with the barest theoretical understanding of discovery. I’ve found it’s never safe to assume that students know the mechanisms of last-century civil discovery, let alone those of modern e-discovery. Accordingly, I penned the following short introduction to discovery in U.S. civil litigation and offer it here in case you need something like it, especially if you’re also teaching this stuff. [It’s copyrighted, but feel free to use it with attribution]. . . .
17 Sunday Jan 2016
Posted 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
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
08 Sunday Nov 2015
Posted in Discovery, Social Media, Subpoena Duces Tecum
≈ Comments Off on How To Subpoena Social Media – Updated 2015.
Tags
Associate'sMind Blog, Discovery, Electronic Communication Service, Keith Lee, Remote Computing Service, Social media, Stored Communications Act, Subpoena Duces Tecum
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.
10 Monday Aug 2015
Posted in Attorney Work Product, Attorney-Client Privilege, Discovery, Federal Rules of Discovery, Privilege and Confidentiality, Privilege Log, Requests for Production
≈ Comments Off on 2,941 Page Privilege Log? Better Make It Good.
Tags
Attorney-Client Privilege, Discovery, Doug Austin, eDiscoveryDaily Blog, Motion to Compel, Privilege Logs
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
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. . . .
10 Monday Aug 2015
Posted in Attorney Work Product, Attorney-Client Privilege, Discovery, Federal Rules of Discovery, Privilege and Confidentiality, Privilege Log, Requests for Production
≈ Comments Off on Privilege Logs.
Tags
Attorney-Client Privilege, Bow Tie Law Blog, Confidentiality, Discovery, Joshua Gilliland, Privilege Logs
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. . . .
24 Wednesday Jun 2015
Posted in Depositions, Discovery, E-Discovery, Evidence, Intellectual Property, Preservation, Spoilation
≈ Comments Off on Spoiled Evidence On Both Sides – What Else Could Go Wrong?
Court Finds Wife Liable for Agent-Husband’s Intentional Deletions, Recommends Default Judgment, by K&L Gates in CASE SUMMARIES
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.’ . . .
25 Monday May 2015
Posted 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? . . .
20 Wednesday May 2015
Posted in Discovery, E-Discovery, Privilege and Confidentiality
≈ Comments Off on E-Discovery Red Herring?
Riley Cell Phone Decision a Red Herring in E-Discovery, by Craig Ball, Ball In Your Court Blog
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. . . .
19 Tuesday May 2015
Posted in Discovery, E-Discovery, Preservation, Sanctions
≈ Comments Off on Angry Judge Sanctions Defendants For E-Discovery Spoilation.
Tags
Data Preservation, Discovery, Doug Austin, E-Discovery, e-Discoverydaily Blog, Motion to Compel, Spoilation
Tired of the “Crap”, Court Sanctions Investors and Lawyers for Several Instances of Spoliation, by Doug Austin, eDiscoverydaily Blog
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.’ . . .
02 Saturday May 2015
Posted in Discovery, E-Discovery, Federal Rules of Discovery, Requests for Production
≈ Comments Off on No Perfection Standard In E-Discovery?
Tags
Ball In Your Court Blog, Competency, Craig Ball, Discovery, E-Discovery, Request for Production of Documents
Is There a Right to Fail in E-Discovery?, by Craig Ball, Ball In Your Court Blog
https://ballinyourcourt.wordpress.com/2015/05/01/is-there-a-right-to-fail-in-e-discovery/
Disagreements about scope and process in e-discovery shouldn’t split between plaintiffs’ and defendants’ interests. After all, everyone is a requesting and producing party, whether north or south of the ‘v.’ Yet, the reality is that most defense counsel see themselves as producing parties, and most plaintiffs’ counsel identify with requesting parties. That unfortunate alignment poisons our ability to set aside allegiances and be officers of the Court mutually determined to find the most effective and efficient means to discover evidence illuminating the issues.
Cooperation in e-discovery is derided as naive in an adversarial system of justice, and ‘discovery about discovery’ is vilified as a diversionary tactic, a modern take on the maxim, ‘if you can’t try the case, then try your opponent.’ Counsel for responding parties are quick to note that no party is obliged to deliver a perfect production. They’re absolutely right. Perfection is not the standard. But, is a producing party entitled to fail before a requesting party may inquire into the scope and process of e-discovery? Must we wait until the autopsy to question the care plan? . . . .
24 Tuesday Mar 2015
Posted in Discovery, Family Law, Hidden Assets, Interrogatories, Requests for Production, Trusts
≈ Comments Off on What Can You Do When The Divorcing Spouse Hides Marital Assets In A Trust?
Tags
Asset Search Blog, Discovery, Divorce, Fred Abrams, Interrogatories, Marital Assets, Requests for Production, Trusts
Divorce & Hidden Money: Collecting Evidence About Assets Concealed By A Trust, by Fred Abrams, Asset Search Blog
Mroy post ‘Four Asset Concealment Tools‘ says that assets can be hidden by fraudulently transferring them to a trust. This 15th post in the ’Divorce & Hidden Money’ series concentrates on the evidence a divorcing spouse might try to collect if marital assets are concealed by a trust.
A spouse can use the pretrial discovery phase of a divorce to gather evidence about any marital assets concealed by a trust. Based on this evidence, the divorcing spouse may be able to credibly argue that assets at the trust are marital property subject to distribution by the Court. A divorcing spouse might also claim the trust was void if the trust was ‘self-settled‘ (i.e. the grantor and beneficiary were found to be one and the same). Under certain circumstances a divorcing spouse can additionally assert the trust veil should be pierced because the trust wrongly concealed assets &/or facilitated fraudulent transfers. See Babitt v. Vebeliunas (In re Vebeliunas), 332 F.3d 85, 91 (2d Cir. 2003) (discussing New York cases where right to pierce trust veil was preserved). . . .
21 Saturday Mar 2015
Posted in Bates Numbering, Discovery, Document Control, Interrogatories, Requests for Admissions, Requests for Production
≈ Comments Off on Another Way To Number Discovery Documents With Microsoft Word.
Tags
Auto-Numbering, Bates Numbering, Discovery, Document Control, Interrogatories, Matt Albrecht, Microsoft Word, Remedial Action Law Blog, Request for Production of Documents, Requests for Admission
Making Numbering Interrogatories and Requests for Production/Admission Easy (with Video), by Matt Albrecht, Remedial Action Law Blog (with hat tip to Sam Glover, Lawyerist Blog, and Patricia Lyons)
Not surprisingly, Pat Lyons, RP, from Rhode Island, one of the sharpest paralegals I’ve ever met, knows a neat trick. Thanks, Pat! -CCE
Numbering requests for production and requests for admission is something that legal secretaries and attorneys loathe. It’s something that systems administrators loathe to see take so long to do. It’s an error-prone process that occasionally results in mis-numbering and confusion, and when mistakes occur, it just looks bad.
Microsoft Word has auto-numbering features that can make things like this easier. One way that we use auto-numbering is for legal-style numbered paragraphs. Properly applied to Styles in Word, numbered paragraphs are easy, automatic, and they update themselves. We use multilevel lists to accomplish numbered paragraphs, and it works wonderfully. . . .
14 Saturday Mar 2015
Posted in Discovery, E-Discovery, Privilege and Confidentiality, Technology-Assisted Review
≈ Comments Off on Recent Opinions On E-Discovery Hot Topic – Technology-Assisted Review.
Tags
Confidentiality, Discovery, E-Discovery, K&L Gates, Seed Set Transparency, TAR, Technology-Assisted Review
Magistrate Judge Peck Addresses TAR, Provides Insight on Important Issues, published by K&L Gates
Rio Tinto PLC v. Vale S.A., —F.R.D.—, 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015)
Taking up the topic of technology-assisted review (‘TAR’), Magistrate Judge Andrew Peck’s most recent opinion declares that ‘it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.’ Despite this, there remain open issues surrounding the use of TAR, including, as Magistrate Judge Peck noted, the question of ‘how transparent and cooperative the parties need to be with respect to the seed or training set(s).’ And, while this opinion did not resolve that question (because the parties in the present case agreed to ‘a protocol that discloses all non-privileged documents in the control sets’), it does provide some notable commentary on the issue. . . .
08 Sunday Feb 2015
Posted in Concept Search Tools, Discovery, Document Review, E-Discovery, Emails, Federal Rules of Discovery, Legal Technology, Microsoft Office, Native Format, Outlook, Preservation, Requests for Production, Rule 34
≈ Comments Off on Do-It-Yourself E-Discovery? Is There Such A Thing?
Tags
Ball In Your Court Blog, Computer Forensics, Craig Ball, Discovery, E-Discovery, E-Mail, Evidence, Native Format, PST Files
Do-It-Yourself Digital Discovery, Revisited, by Craig Ball, Ball In Your Court Blog
In case you have not noticed, Craig Ball is re-posting older articles, as he explains below. Truly folks, when it comes to e-discovery, when Craig Ball speaks, I listen. Maybe you should too.
I have posted many of his revisited posts. To find them all, visit his blog, Ball In Your Court at https://ballinyourcourt.wordpress.com/. -CCE
This is the thirteenth 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.
Do-It-Yourself Digital Discovery [Originally published in Law Technology News, May 2006]
Recently, a West Texas firm received a dozen Microsoft Outlook PST files from a client. Like the dog that caught the car, they weren’t sure what to do next. Even out on the prairie, they’d heard of online hosting and e-mail analytics, but worried about the cost. They wondered: Did they really need an e-discovery vendor? Couldn’t they just do it themselves?
As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ’Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’
Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.
As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ‘Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’
Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.
The West Texas lawyers sought a way to access and search the Outlook e-mail and attachments in the PSTs. It had to be quick and easy. It had to protect the integrity of the evidence. And it had to be cheap. They wanted what many lawyers will come to see they need: the tools and techniques to stay in touch with the evidence in smaller cases without working through vendors and experts.
What’s a PST?
Microsoft Outlook is the most popular business e-mail and calendaring client, but don’t confuse Outlook with Outlook Express, a simpler application bundled with Windows. Outlook Express stores messages in plain text, by folder name, in files with the extension .DBX. Outlook stores local message data, attachments, folder structure and other information in an encrypted, often-massive database file with the extension .PST. Because the PST file structure is complex, proprietary and poorly documented, some programs have trouble interpreting PSTs.
What About Outlook?
Couldn’t they just load the files in Outlook and search? Many do just that, but there are compelling reasons why Outlook is the wrong choice for an electronic discovery search and review tool, foremost among them being that it doesn’t protect the integrity of the evidence. Outlook changes PST files. Further, Outlook searches are slow, don’t include attachments (but see my concluding comments below) and can’t be run across multiple mail accounts. . . . .
.
20 Tuesday Jan 2015
Posted 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
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. . . .
17 Saturday Jan 2015
Posted in Discovery, Document Review, E-Discovery, Native Format, Preservation, Requests for Production
≈ Comments Off on E-Discovery Is Scary!
Tags
Discovery, E-Discovery, ESI, Facebook, Molly DiBianca, Native Format, Social media, The Delaware Employment Law Blog, Wellin v. Wellin
How NOT to Produce Facebook Evidence, by Molly DiBianca, The Delaware Employment Law Blog
Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is.
There are times that a lawyer will want to produce electronic records, such as text messages, emails, and, heaven forbid, social-media content, but simply not know how to do it. I had an opposing counsel call me once and say that he was willing to produce his client’s relevant Facebook posts if I would show him how to do it. Ummmm, no.
My point, though, is that lawyers are ethically bound to understand and comply with the applicable e-discovery rules but, as a matter of practical reality, that does not mean that they comply. Which is why e-discovery continues to be a predominant subject for discussion in the legal profession.
A recent case from South Carolina gives a pretty good example of how not to produce electronically stored information (ESI). In Wellin v. Wellin, the defendants moved to compel the production of certain ESI, including emails, text messages, and Facebook posts in ‘native format.’ (Native format means, in the most basic sense, that if it was originally in electronic form, you must produce it in electronic form, as opposed to paper form).
The plaintiffs apparently had attempted to produce the requested items but, instead of producing the responsive material in native format, they . . . [wait for it, wait for it] . . . .-
17 Saturday Jan 2015
Posted in Boilerplate Forms, Discovery, Editing, Interrogatories, Legal Writing, Legalese, Plain Language, Readability, Requests for Admissions, Requests for Production
≈ Comments Off on Federal Magistrate On Writing Discovery and Responses – “What We Have Here Is A Failure to Communicate.”
Tags
Discovery, Discovery Disputes, Discovery Responses, Legal Writing, Oklahoma Bar Journal, U.S. Magistrate Paul J. Cleary
| Some Thoughts on Discovery and Legal Writing, by Judge Paul J. Cleary, Oklahoma Bar Journal, 82 OBJ 33 (2011)
Since 2002, The Hon. Paul J. Cleary has served as U.S. Magistrate Judge for the Northern District of Oklahoma. He has the joy of overseeing discovery in civil litigation. You could say that experience makes him an expert. It should be no surprise that he urges counsel to use good writing habits and avoid boilerplate language. -CCE “What we have here is failure to communicate.” Cool Hand Luke (Jalem Productions 1967). |
There is a famous scene at the end of the movie Blow Up2 where mimes face off in a tennis match using an imaginary ball and racquets. It reminds me of too many discovery disputes: I sit as the linesman, watching helplessly as the lawyers roil and argue between intermittent swats at imaginary objects.
The fundamental problems that underlie most discovery disputes might be pulled from the pages of a marriage counselor’s handbook: Fear of commitment and inability to communicate. Lawyers won’t commit to a definition of the legal dispute: It’s not a simple breach of contract; it’s a contract, fraud, bad faith, conspiracy, racketeering case. The ill-defined nature of the dispute drives discovery into vast, uncharted territory. By the same token, lawyers responding to discovery requests won’t commit to a clear statement of what responsive documents exist and which of those will be produced. The purpose of this article is to examine the problem of inartful/incomprehensible discovery requests and responses and to offer some observations and, perhaps,some solutions. . . .
24 Wednesday Dec 2014
Posted in Breach, Contract Law, Discovery, E-Discovery, Litigation, Motion to Compel, Requests for Production
≈ Comments Off on Shocking! A Court Frustrated by Parties’ E-Discovery Tactics.
E=Frustrated Court Crafts ‘New and Simpler Approach to Discovery,’ Identifies Search Terms to be Utilized by Plaintiff, posted in Case Summaries by K&L Gates
Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014)
In this breach of contract case, the court granted in part Defendant’s motion to compel and, in light of Plaintiff’s piecemeal production (which the court had earlier cautioned against) and other discovery failures, fashioned a ‘new and simpler approach’ to discovery, including the identification of 13 search terms/phrases to be utilized when searching ‘ALL [of Plaintiff’s] corporate documents, files, communications, and recordings. . .’ The court also ordered the plaintiff and all counsel of record to file a sworn statement confirming its ‘good-faith effort to identify sources of documents; that a complete search of those sources for each of the [identified] phrases occurred; and that the search results [were] furnished to [Defendant].’
Discovery in this case was contentious and resulted in at least one prior motion to compel, which the court granted in favor of the defendant. At that time, the court warned the plaintiff ‘not to engage in piecemeal production of materials it has located that are responsive to Optimum Energy’s unobjectionable requests.’ Plaintiff subsequently produced documents on nine separate occasions.
Following the prior motion to compel, Defendant also learned, for the first time, of a ‘five-step development process,’ that it believed was highly relevant to its claims, and which caused it to believe that the plaintiff was withholding documents from production. Accordingly, Defendant filed a second motion to compel and sought sanctions for Plaintiff’s discovery behavior, including its delayed production of relevant information.
Taking up the motion, the court expressed its frustration with ‘the continual and growing animosity between the parties, an animosity that has slowed the progress of the case and that has required repeated judicial intervention.’ The court also noted that despite the bickering between parties, neither had ever filed a motion for a protective order ‘[n]or ha[d] any party foregone passive-aggressive snarking and filed a formal motion under Rule 11 or 28 U.S.C. § 1927 to complain about material misrepresentations in motion papers.’ ‘Instead,’ the court continued, ‘the parties would prefer that the Court forget what the actual claims are in this case and start obsessing over details . . . .’
16 Tuesday Dec 2014
Posted in Adobe Acrobat, Bates Numbering, Bates Numbers, Discovery, E-Discovery, Legal Technology, Requests for Production
≈ Comments Off on “Lock Down” Your Bates Numbers To Prevent Edits By Opposing Counsel.
Tags
.pdf, Acrobat for Legal Professionals Blog, Adobe Acrobat, Bates Numbering, Discovery, Document Production, Rick Borstein, TIFF
Preventing Edits To Bates Numbers Applied In Acrobat, by Rick Borstein, Acrobat for Legal Professionals Blog
If your job is anything like mine, you use Adobe Acrobat to Bates number documents all the time. There are many reasons to use a Bates numbering system. One of the top reasons is that it helps to eliminate confusion and keeps documents organized.
If opposing counsel can change the Bates numbers on your produced documents, it can create havoc. I do not like havoc, especially when I have spent a lot of time and my client’s money to create a neatly Bates-numbered set of documents. Thank you, Mr. Borstein! -CCE
[T]he ability to remove Bates Numbers is valuable in case you make a mistake during the numbering process. However, due to the adversarial nature of the legal business, attorneys may desire to limit what the other side can do with documents.
To whit, this email I received from an attorney last week:
What can I use to flatten Bates numbers so that they cannot be altered or removed using the Acrobat Bates numbering process?
I know I can print to PDF, save as TIFF, print-then-scan, etc., but am looking for a solution that will work in batch mode and not degrade the appearance of the file. Also, I don’t favor using security settings because I don’t want to restrict the user’s ability to access the file.
In this article, I’ll discuss how to ‘lock down’ Bates Numbers so that they cannot be removed by Acrobat’s ‘Remove Bates’ option. . . .
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