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

11 Tuesday Oct 2016

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

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Bow Tie Law Blog, E-Discovery, Josh Gilliland, Requests for Production

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

What Can You Do When The Divorcing Spouse Hides Marital Assets In A Trust?

24 Tuesday Mar 2015

Posted by Celia C. Elwell, RP in Discovery, Family Law, Hidden Assets, Interrogatories, Requests for Production, Trusts

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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

http://tinyurl.com/pnb78wc

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). . . .

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Craig Ball’s E-Discovery Tips For Judges.

18 Saturday Oct 2014

Posted by Celia C. Elwell, RP in Discovery, E-Discovery, Requests for Production

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Ball in Your Court, Craig Ball, Discovery, E-Discovery, ESI, Judges, Metadata, Requests for Production

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. . . .

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

20 Tuesday May 2014

Posted by Celia C. Elwell, RP in Discovery, Document Review, E-Discovery, Federal Rules of Discovery

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bowtielaw blog, Discovery, E-Discovery, E-Mail, ESI, Joshua Gilliland, Requests for Production, Text Messages

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. . . .

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

09 Sunday Mar 2014

Posted by Celia C. Elwell, RP 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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Adolph J. Levy, Copiers, Digital Devices, Discovery, Document Retention, E-Discovery, Fax Machines, Hard Drives, Out-Of-The-Box Lawyering Blog, Requests for Production

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. . . .