Tag Archives: Discovery

Attorney Disbarred For Mishandling Administration of Mother’s Estate.

06 Saturday Dec 2014

Posted by in Ethics Opinions, Legal Ethics, Malpractice, Probate, Probate and Trusts, Rules of Professional Responsibility, Trusts, Wills

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Brother Can You Spare A Disbarment? by Mike Frisch, Legal Profession Prof Blog

http://tinyurl.com/m8bcrmw

The Washington State Supreme Court has disbarred an attorney for misconduct in connection with the administration of his mother’s estate.

The attorney was appointed as personal representative on his mother’s death in 1995. He lived with her at the time of her death and had his law office in her home.

The estate was to be equally divided between him and his three brothers.

The court affirmed findings that the attorney had engaged in frivolous motions and appeals, ignored discovery obligations and mis-valued estate assets.

In this case, the hearing officer reasonably concluded from the evidence presented at the hearing that Jones filed frivolous motions and appeals that harmed his brothers and the administration of justice. Jones filed numerous motions and appeals in the trial court, the Court of Appeals, and this court. Each motion was denied, and sanctions were awarded against Jones. Because Jones received sanctions, the hearing officer reasonably concluded that Jones was put on notice of the frivolous nature of his motions before refiling and appealing them. Like in Sanai, the hearing officer did not rely solely on a particular judicial ruling, but rather used judicial decisions as evidence that Jones filed repetitive frivolous motions that resulted in sanctions. The hearing officer’s conclusions were additionally supported by the testimony of six witnesses, resulting in over 1,500 pages of transcripts, as well as nearly 200 exhibits.

The court found seven aggravating factors including refusal to acknowledge the ethical violations

Jones argues that the record does not support refusal to acknowledge because he is not required to agree with the charges made or to confess. However, the aggravating factor of refusal to acknowledge the wrongful nature of conduct was correctly applied. Jones continued to file motions, lawsuits, and appeals even after being sanctioned numerous times for the frivolous nature of such filings. By receiving sanctions, Jones was aware of his RPC violations but persisted with his conduct.

To Decide Motion To Compel, Court Asks Whether Discovery Was “Fair.”

08 Saturday Nov 2014

Posted by in Discovery, E-Discovery, Intellectual Property, Motion to Compel, Patent Law, Requests for Production

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Considering Motion to Compel, Court Asks Whether Discovery Responses Have Been “Fair,” by K&L Gates

http://tinyurl.com/kkgomaa

Finjan, Inc. v. Blue Coat Sys., Inc., No. 5:13-cv-03999-BLF, 2014 WL 5321095 (N.D. Cal. Oct. 17, 2014)

In this patent infringement case, Defendant objected to ‘producing custodial email from archival systems when [the Plaintiff] is not able to do the same in return.’ Plaintiff filed a motion to compel. In assessing the motion, the court recognized potential limitations on discovery, pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii).  The court indicated that, ‘[r]educed to its essence, Rule 26(b)(2)(iii) [sic] requires this court to decide: have Blue Coat’s discovery responses been fair?’  In response, the court concluded that the defendant’s responses had ‘largely been fair, but not entirely.’ Turning specifically to the question of custodial emails, the court reasoned:

Where Blue Coat has been less than fair is with respect to archival email for its eight custodians. Blue Coat may largely be in the right that it should not have to dig through legacy systems when Finjan is unable to the same for its custodians. But one party’s discovery shortcomings are rarely enough to justify another’s. And here, at least with respect to documents mentioning Finjan—the one specific category of documents Finjan could identify that it needed from archived email—Finjan’s request is reasonable.

A full copy of the court’s opinion is available here.

Witness Preparation = Successful Depositions.

22 Wednesday Oct 2014

Posted by in Advertising, Depositions, Discovery, Law Office Management, Marketing, Objections, Video Deposition

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Witness Preparation: Best Practices for a Successful Deposition, by Jim Calloway, Jim Calloway’s Law Practice Tips Blog

http://tinyurl.com/osk8vkn

Jim Calloway is a superhero masquerading as the Director of the Oklahoma Bar Association’s Management Assistance Program. While that being the Director of the OBA’s Management Assistant Program may be Jim’s “day job,” Jim does far more than that. This link will tell you more about his other activities, and I have no idea where he finds the time: http://jimcalloway.typepad.com/about.html.

But the best thing about Jim is that we found him first! And we know a good thing when we see it. We may share him with the rest of you from time to time, but luckily Jim has – so far – always called Oklahoma his home. -CCE

Witness Preparation: Best Practices for a Successful Deposition is a really nice article by Tulsa, Oklahoma attorney Robert P. Redemann. I strongly recommend it to any lawyer, even those who might not be involved with depositions. Sometimes it is good to understand best practices in our profession. Share the link with a young lawyer you know.

I would add one other item. Have you looked at the materials you routinely give the client to prepare for a deposition recently? Surely all law firms have progressed past the point of giving clients photocopied deposition tips in favor of custom-prepared materials with the law firm’s name, address and logo. But if you have not reviewed your handouts lately, take a look. A good proofing and freshening is often in order. Use some different sized fonts, headers, text boxes or insert a small graphic or two to increase readability. You never know who may be looking at this document sometime as a representation of your firm’s work product. Make this a professional document you are proud to have carry your firm’s name.

Craig Ball’s E-Discovery Tips For Judges.

18 Saturday Oct 2014

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

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10 E-Discovery Tips for Judges, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2013/08/09/1370/

I speak with a lot of judges about e-discovery and digital evidence.  I’ve taught at Federal Judicial Center programs from coast-to-coast and addressed confabs of judges in various states. Some of these presentations have turned into annual pilgrimages.  Have PowerPoint.  Will travel.

It’s a privilege to address judges because, among their own, judges are more cordial, relaxed and candid than in their courtrooms.  But, it’s also a responsibility and a challenge.  In the state systems, I can often be a judge’s first exposure to e-discovery.

Lawyers want the quick course in e-discovery.  They expect to glean ESI skills in minutes, before they glaze over with the talk of metadata and forms of production. Lawyers seek the canned checklist or scripted list of questions, and little care if they understand what the check boxes mean or what the follow up question should be.

It drives me bonkers. . . .

New York’s New Privilege Log Rule.

13 Sunday Jul 2014

Posted by in Discovery, Document Review, E-Discovery, Litigation, Privilege Log

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Rule Limiting Privilege Log Practice to Take Effect, by Suevon Lee, New York Commercial Litigation Insider Blog

http://tinyurl.com/p8wwuhq

In an age of exploding electronic discovery that has multiplied the cost and scope of document review, litigants in New York’s Commercial Division will soon have the benefit of revised privilege log practice.

Starting September 2, new Rule 11-b, signed Tuesday by Chief Administrative Judge Gail Prudenti, will instruct parties to meet at the outset of the case and afterward to discuss the scope and parameters of privilege review. It also will strongly encourage using categorized designations for documents as opposed to itemized listings to help streamline the process.

Parties who resist the categorized approach may be subject to attorney fees upon a showing of good cause by the other side or a protective order from the judge.

Modeled after guidelines set forth in such jurisdictions as the Southern District of New York and Delaware Court of Chancery, the rule offers ‘a meaningful way for courts and parties to assess the assertion of privilege,’ said David H. Tennant, a partner at Nixon Peabody, who co-drafted the language with Jonathan Lupkin, of Rakower Lupkin. They are members of an advisory group charged with proposing changes to Commercial Division practice to offer a more efficient and cost-effective forum for litigants and their business clients. . . .

Why Defendant Former Employers Do Not Get Mirror-Image of Plaintiff’s Personal Computer.

30 Monday Jun 2014

Posted by in Computer Forensics, Discovery, E-Discovery, Emails, Employment Law, Evidence, Forensic Evidence, Law Office Management, Legal Technology, Requests for Production, Technology

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Proportionality Prevents Mirror Imaging of Family Computers, by Joshua Gilliland, Bow Tie Law’s Blog

http://tinyurl.com/osvw3ws

The Defendants in employment litigation sought the mirror imaging of the Plaintiff’s personal computers three years after she had been terminated. The crux of the eDiscovery centered on the former employee forwarding emails from her supervisors email to her personal account, which the Defendants claimed were lost by the Plaintiff. The Court denied the motion to compel. Downs v. Va. Health Sys., 2014 U.S. Dist. LEXIS 74415, 6-11 (W.D. Va. June 2, 2014).

Judge James G. Welsh did a very nice job of summarizing ESI relevant to a case,proportionality, and the rules for conducting forensic analysis on an opposing party’s hard drive. The Court held the following:

(1) Nothing in the record suggests any willful failure, fault or bad faith by the plaintiff on her discovery obligations that would justify the requested computer forensics examination;

(2) The “mirror-imaging” of the plaintiff’s family computers three years after her termination raises significant issues of confidentiality and privacy;

(3) There was no duty on the part of the plaintiff to preserve her family computers as evidence;

(4) Principles of proportionality direct that the requested discovery is not sufficiently important to warrant the potential burden or expense in this case; and

(5) On the current record that the defendants have failed to justify a broad, and frankly drastic, forensic computer examination of the plaintiff’s two family computers.

Downs, at *9-10, referencing McCurdy Group v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001); see also Basile Baumann Prost Cole & Assocs., Inc. v. BBP & Assocs. LLC, 2013 U.S. Dist. LEXIS 51264, *8 (D. Md. Apr. 9, 2013). . . .

 

Bye, Bye Privilege! What Happens When You Take No Reasonable Steps To Prevent Disclosure.

18 Wednesday Jun 2014

Posted by in Attorney Work Product, Attorney-Client Privilege, Discovery, Document Review, E-Discovery, Federal Rules of Discovery, Requests for Production

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Think Fast—But Not Too Fast: Privilege Waived for Failure to Take Reasonable Steps to Prevent Disclosure, published by K&L Gates

http://tinyurl.com/khbymml

First Tech. Capital, Inc. v. JPMorgan Chase N.A., No. 5:12-CV-289-KSF-REW, 2013 WL 7800409 (E.D. Ky. Dec. 10, 2013)

In this case, the court found that privilege was waived where First Technology Capital, Inc. (‘FTC’*), through counsel, failed to take reasonable steps to prevent the inadvertent disclosure of privileged materials.  The court’s determination that counsel’s efforts were unreasonable was based, in part, on the speed of the alleged page-by-page review (each document received, on average, only 9.84 seconds of review) and FTC’s failure to produce a privilege log, among other things. . . .

How To Draft Interrogatories.

17 Tuesday Jun 2014

Posted by in Discovery, Insurance Defense, Interrogatories, Litigation, Motor Vehicle, Negligence, Personal Injury, Product Liability

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Drafting Interrogatories, by Megan E. Boyd, Lady (Legal) Writer

http://tinyurl.com/lx5y8ql

There are five types of discovery. Each has its own strength and weakness. Knowing when, and how, to use each effectively narrows the issues of the case and may even provide sufficient evidence for a successful summary judgment motion. This post discusses one of the most common and useful forms of discovery – interrogatories. -CCE

Interrogatories (a fancy name for a list of questions) are sent as part of the discovery process in litigation and allow parties to gain information relevant to the litigation. Many attorneys send interrogatories before they engage in other types of discovery, such as depositions, because interrogatory responses often help an attorney narrow down the types of questions the attorney will ask during a deposition. . . .

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

24 Saturday May 2014

Posted by 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 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). . . .

In Discovery, Ask A Silly Question, You’ll Get A Silly Answer.

20 Tuesday May 2014

Posted by in Discovery, Document Review, E-Discovery, Federal Rules of Discovery

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Lessons From Drafting Overly Broad Requests, by Joshua Gilliland, Esq., bowtielaw blog

http://tinyurl.com/pzykr25

Drafting discovery is an art. While painting in oils or pastels is certainly more colorful than drafting requests in Times New Roman or Ariel, both require thought. And like any masterpiece, drafting a request for production can have its challenges.

A Requesting Party demanded an opposing party produce ‘[a]ll email and text messages sent or received on Mayo email and text messaging accounts.’

The Magistrate Judge found the request to be overly broad. . . .

Does Document Review Qualify As The Practice of Law?

16 Sunday Mar 2014

Posted by in Discovery, Document Review, E-Discovery, Employment Law, Fair Labor Standards Act, Overtime

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The Contract Attorney Overtime Case Against Skadden, Arps/Tower Legal Has A New Twist, posted by mrposse, The Posse List Bog

http://perma.cc/BQB7-NU7W

This is a legal question that has not yet been completely resolved. As noted in the post, bar examiners have stated that document review is not the practice of law. Contract attorneys who often perform this work want to know whether it qualifies for overtime. This will be one to watch. -CCE

Social Media Is Admissible Evidence, But Must Be Authenticated.

16 Sunday Mar 2014

Posted by in Admissibility, Authentication, Discovery, Evidence, Relevance, Social Media

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Social Media Sleuths Find Evidence, But Admissibility Requires Authentication, by Dave Stafford, The Indiana Lawyer.com

http://perma.cc/N638-D84L

What happens on Facebook stays on Facebook – forever – and attorneys conceivably run into risk if they fail to investigate pertinent posts, a judge suggested during a recent presentation about social media evidence. . . .

If Your Copier Has A Hard Drive, Is Its Stored Data Susceptible to E-Discovery?

09 Sunday Mar 2014

Posted by in Confidentiality, Databases, Discovery, E-Discovery, Law Office Management, Legal Ethics, Legal Technology, Litigation Hold, Metadata, Native Format, Office Procedures, Preservation, Sanctions, Technology

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Be Aware: Copying Machines Can Have Hard Drives And Store Copies – That’s Potential Out-Of-The-Box Discovery, by Adolph J. Levy, Out-Of-The-Box Lawyering Blog

http://tinyurl.com/mmpkd5h

Did you know that some copying machines have hard drives and store digital copies of the copies they have made? Or that the hard drives could even contain 25,000 copies that have been made? Copier + Hard Drive: A Dangerous Combination.

Lawyers are used to discovering e-mail, but now what about using discovery to find copies that a opposing party made over time? Wouldn’t you like to be at your opponent’s office and see the originals of all the copies that were being made?

Well, now, fortunately — or unfortunately — you might be able to. . . .

Use Requests for Admission For Authentication of Trial Exhibits.

17 Monday Feb 2014

Posted by in Discovery, Exhibits, Requests for Admissions, Trial Tips and Techniques

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Using Requests for Admission to Simplify Your Case, by Evan Schaeffer, The Trial Practice Tips Blog

http://tinyurl.com/m3y82eq

I have never understood why this is not used more frequently. It saves time and aggravation for the parties and the court, especially if you want an exhibit to be part of the record. – 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.’

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/

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

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.

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

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