Tag Archives: Request for Production

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

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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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Is It That Hard To Follow Rule 34? Not According To The Judge.

28 Friday Nov 2014

Posted by in E-Discovery, Federal Rules of Discovery, Requests for Production, Rule 34

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Rule 34: As Basic As You Get, by Joseph Gilliland, Bow Tie Law’s Blog

http://tinyurl.com/mbrcqlf

Magistrate Judge Paul Grewal is one of the new heroes of eDiscovery jurisprudence. In Venture Corp. Ltd. v. Barrett, the good Judge opened with the following on Rule 34:

Most lawyers (and hopefully judges) would be forgiven if they could not recite on demand some of the more obscure of the Federal Rules of Civil Procedure. Rule 80 (Stenographic Transcript as Evidence) and Rule 64 (Seizing a Person or Property) come to mind. But Rule 34 (Producing Documents, Electronically Stored Information, and Tangible Things) is about as basic to any civil case as it gets. And yet, over and over again, the undersigned is confronted with misapprehension of its standards and elements by even experienced counsel. Unfortunately, this case presents yet another example.

Venture Corp. Ltd. v. Barrett, 2014 U.S. Dist. LEXIS 147643, 1 (N.D. Cal. Oct. 16, 2014).

Here is what happened: The Defendant served discovery requests on the Plaintiff and wanted the discovery and organized and labeled to identify the requests to which they were responsive; The Plaintiff did not want to do that and instead produced 41,000 pages of discovery, which ended with the Court ordering re-production for not following either Rule 34(b)(2)(E)(i) or (ii). Venture Corp. Ltd., at *1-2.

The Tactical Document Dump

Federal Rule of Civil Procedure Rule 34 is supposed to prevent the ‘document dump,’ which was the attorney Cold War equivalent of a doomsday weapon. . . .

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. . . .

Avoidable E-Discovery Mistake – A Good Lesson on Proportionality.

02 Tuesday Sep 2014

Posted by in Discovery, E-Discovery, Federal Rules of Discovery, Interrogatories, Requests for Production

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Nebraska, Where Proportionality is Alive and Well in Discovery, by Joshua Gilliand, Esq., Bow Tie Law’s Blog

http://tinyurl.com/qgymkto

One lesson from United States v. Univ. of Neb. at Kearney, is that maybe you should take depositions of key parties and use interrogatories to find out relevant information to your case before asking for over 40,000 records that contain the personal information of unrelated third-parties to a lawsuit. . . .

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. . . .

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.’

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?