In a trademark infringement case pending in the Northern District of California (InternMatch v. Nxtbigthing, 2016 WL 491483 [N.D. Cal. Feb. 8, 2016]), plaintiff requested copies of any documents relating to the defendants’ defense that it had continually and pervasively used the trademark at issue. The defendants were not able to produce many responsive documents and advised
What is a Data Map, Anyway?
When dealing with a lawsuit that inevitably will require the production of electronically stored information (“ESI”), one of the first things we (as counsel) have to do is figure out where that ESI resides. But how, exactly, does one begin to determine where responsive data exists? Well, consider the client’s data map.
Some of you may be thinking, what the
Documents Identified by Agreed Upon Search Terms Do Not Necessarily Require Production of Those Documents
In Gardner v. Continental Cas. Co., (2016 WL 155002 [D. Conn. Jan. 13, 2016]), the District Court was called upon to decide two different issues raised by Plaintiffs in a motion to compel. The case itself concerned the long term care insurance coverage for five Connecticut residents for stays at Connecticut Managed Residential Care (“MRC”) facilities. As is
A Few ESI Musts For 2016
Today’s post draws upon countless other recent articles and blogs and their respective predictions regarding, what’s in store for 2016 when it comes to e-discovery. I have tried to synthesize below, the steps that I believe every litigator should embrace for the coming year.
First, learn the new rules of civil procedure. The amended Federal Rules of Civil Procedure took
The Amendments to the Federal Rules of Civil Procedure, the Court of Appeals’ Pegasus Aviation Decision and What They Mean for New York Litigators
For a long time, New York state and federal courts were out of sync with one another with regard to a litigant’s discovery obligations. For example, the state courts in New York required a party to take steps to preserve discovery materials upon the commencement of a litigation, while the federal courts required preservation upon the reasonable anticipation of litigation.
New York Court of Appeals Finally Speaks on Ediscovery Spoliation, But is it Now Out of Step with the Federal Courts?
After sitting on the sidelines for years, the New York Court of Appeals (the highest appellate court in New York) has finally ruled on the standard to be applied to claims alleging spoliation of ESI. The decision, however, which was late in coming, places New York at odds with the new Federal Rules of Civil Procedure. This post will address
Businesses Should Assess their Technology Solutions Mindful of the Potential for Litigation and Corresponding Discovery Obligations
In this case involving a motion to compel, the District Court addressed Defendants’ claim that emails stored on backup tapes were not reasonably accessible because of the undue burden and cost associated with retrieving them. Turning first to the question of “undue
Will New York Follow California’s Lead?
Earlier this summer, the California State Bar formally addressed the ethical obligations of counsel to be competent in matters of e-discovery and specifically established standards for counsel practicing in California. (Formal Opinion No. 2015-193). The Bar stated, “[e]lectronic document creation and/or storage, and electronic communications, have become commonplace in modern life…attorneys who handle litigation may not ignore the
Failure to Cooperate During Discovery Results in Expensive Costs for Reproduction
Themis Bar Review, LLC v. Kaplan, Inc., WL 3397877 (S.D. Cal. May 26, 2015).
In this action, defendant served plaintiff with a request for production that sought, among other things, documents related to the plaintiff’s pass rate and the data substantiating the pass rates posted in the plaintiff’s advertising materials. The plaintiff produced the relevant data in a
Continue Reading Failure to Cooperate During Discovery Results in Expensive Costs for Reproduction
SCOTUS Endorses New FRCP
As those of you reading this well know, many studies and decisions show continued dissatisfaction with the discovery process. Remedies to this dissatisfaction that have gained traction are the ideas of cooperation, proportionality and reasonableness in the discovery process – the very themes that lay at the heart of the proposed amendments to the Federal Rules.
On April 29, 2015