For some, discovery is merely a necessary evil in the litigation process. And so, it should come as no surprise that the discovery process is often ripe with gamesmanship. A recent decision reminds practitioners, however, that discovery is meant to be cooperative, and gamesmanship – especially repetitive and intentional gamesmanship – may be met with “death penalty sanctions” (Heslin
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Fit For Discovery: The Discoverability of Wearable Devices
It is estimated that more than 100 million people are wearing an Apple Watch* and another approximately 31 million people are using the Fitbit.** It is further predicted that sales and use of these devices will continue to grow. And so, as people increasingly look for wearables that both “make technology more personal” and include a “cool factor”
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Boilerplate Objections and Discovery Games Require Little Effort but Result in Big Sanctions
Bursztein v Best Buy Stores, L.P., (2021 WL 1961645 [SD NY 2021]) involves a personal injury lawsuit arising from plaintiff Perla Bursztein’s slip and fall accident in a New York City Best Buy store.
During discovery, Bursztein requested: (i) video surveillance footage of the accident; (ii) maintenance, and repair records for the location of the accident; and (iii) Best
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Just When You Thought You Understood ESI…
Riddle me this: Is a document that resides on your network and which you embed in an email via a hyperlink the functional equivalent of an attachment to that email?
Magistrate Judge Katherine H. Parker, in a recent decision out of the Southern District of New York (Nichols v. Noom, Inc., No. 20-CV-3677 (LGS) (KHP) (S.D.N.Y. Mar. 11, 2021)
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Courts Won’t Go “Where Angels Fear to Tread” When Deciding On Search Term Issues
Employing search terms to identify documents relevant to a lawsuit is a commonly accepted practice. However, issues inevitably arise during the process of crafting search terms. For example, how are search terms agreed upon? What is the proper scope of search terms? Are the proposed terms appropriate for identifying different types of electronically stored information (“ESI”)? A decision out of
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Is Your Zoom-Bombed Meeting Discoverable?
As the pandemic continues and businesses adapt to the realities of virtual workforces, the “Zoom-Bombing” pranks housemates played on one another are a thing of the past.* Rather, we now must confront the discovery implications this virtual shift presents. For example, the increased use of virtual platforms, replete with recording features, may expose a litigant to discovery obligations beyond
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The Costs of E-Discovery and What May be Recoverable Under 28 U.S.C. § 1920
Pursuant to 28 U.S.C. § 1920, a prevailing party may have a right to recover certain costs associated with the litigation. Many prevailing parties seek to recoup costs attendant to e-discovery, given the expense associated with collecting, processing and producing electronically stored information (“ESI”). However, most federal courts confronting the issue have determined that e-discovery costs are recoverable only in
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The City of Chicago Employs “TAR” to Facilitate Review, But Doing So Is Not Without Issue
In today’s “e”-dense world, attorneys often look to leverage technology to facilitate production of electronically stored information (“ESI”) during the discovery process. We do so in an effort to streamline the collection, review and production process whereby containing costs. However, as recent decisions demonstrate, parties often disagree on what methodology to use and which analytic tools are best. Livingston v
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If the Proportionality Doesn’t Fit, Courts May Cost-Shift
Generally, the party producing discovery bears the costs of production. But, shifting to the non-producing party the costs of production is sometimes warranted. This issue was recently tackled by a Kansas District Court in the matter Lawson v. Spirit AeroSystems, 2020 WL 3288058 (D. Kan. June 18, 2020).
Background
Following his retirement from Spirit AeroSystems, Inc.’s (“Spirit”), plaintiff Larry
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Self-Collecting ESI Can Be a Dangerous Game
The Honorable Shira Scheindlin once opined against allowing custodians of ESI to collect their data stating “[s]earching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context…” and “most custodians cannot be ‘trusted’” to effectuate a legally sufficient collection. National Day Laborer Org. Network v US
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