In this single-plaintiff employment discrimination case (Bailey v. Brookdale Univ. Hosp., 2017 U.S. Dist. LEXIS 93093 (E.D.N.Y. June 16, 2017)), counsel for the parties purportedly met and conferred as directed by the Court and, thereafter, entered into an ESI agreement (“Agreement”). The Agreement was presented to the Court and represented to be the product of mutual negotiation.
Continue Reading Because the Court Concluded Plaintiff’s Counsel Failed to Engage in Meaningful Meet and Confer, Court Orders Counsel (not the Plaintiff) to Bear the Costs of Production
Your Litigation Hold Must be Generally Broad And Specifically Tailored
In Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D (E.D.N.C. June 7, 2017), Magistrate Judge Robert B. Jones, Jr., denied Plaintiff Eshelman’s motion seeking a jury instruction in response to Puma Biotechnology Inc.’s (“Puma”) failure to preserve (or identify in its litigation hold notice the need to preserve) internet web browser and search histories. In denying Eshelman’s request, Judge Jones
Continue Reading Your Litigation Hold Must be Generally Broad And Specifically Tailored
Taylor Swift and the Java-Dump: An E-Discovery Tale
Mueller v. Swift, (D. Col. 2017) 2017 WL 2362137
Some opinions just have it all, and Mueller v. Swift does not disappoint! Indeed, in this lawsuit, Taylor Swift, the pop sensation who has been sweeping the nation, alleges she was the victim of sexual misconduct, assault, and battery.
What in the world do such allegations have to do with
Continue Reading Taylor Swift and the Java-Dump: An E-Discovery Tale
The Seven Commandments of Proportionality in ESI*
In In Re State Farm Lloyds, (Texas Supreme Court [May 26, 2017] 2017 WL 2323099), the Supreme Court of Texas elaborated on the standard applied to evaluate and resolve production disputes. Specifically, the Court opined (perhaps not surprisingly) that of “the guiding principles informing the exercise of discretion over electronic-discovery disputes, proportionality is the polestar.” Id. at *15.
Continue Reading The Seven Commandments of Proportionality in ESI*
An Attorney Acting ‘With a Pure Heart and An Empty Head’ is Sanctioned for Spoliating Emails
According to the Complaint filed in Michael Distefano and Nicole Distefano v Law Offices of Barbara H. Katsos, PC and Barbara H. Katsos, Michael DiStefano and a non-party were owners of a limited liability company that was the franchisee of three Cold Stone Creamery Inc. ice cream parlors. In 2006, the three stores suffered financial difficulties due to an extended
Court’s Inherent Sanction Powers – Not Rule 37(e) – Govern when Relevant Information (ESI included) is Intentionally Deleted
In Hsueh v. N.Y. State Dep’t of Fin. Servs., (No. 15 Civ. 3401 [PAC], 2017 WL 1194706 [S.D.N.Y. Mar. 31, 2017]) the Southern District imposed spoliation sanctions (specifically, an adverse inference) on the plaintiff in a sexual harassment case, because of her intentional deletion of a recorded conversation relevant to her allegations. While the court deemed the recording ESI, it
Rule 26 and How It Applies to Electronically Stored Information
Electronic discovery (a/k/a ediscovery and e-discovery) is the process of identifying, preserving, collecting, preparing, reviewing and producing electronically stored information (“ESI”) in the context of a legal or investigative process. In order that counsel may bring discovery issues (including e-discovery issues) to the forefront early on in the development of a case, the Federal Rules of Civil Procedure impose on
Continue Reading Rule 26 and How It Applies to Electronically Stored Information
More Proposed Changes to the Federal Rules that Will Inevitably Impact Electronic Discovery and Federal Practitioners
The Federal Rules are undergoing more changes! And, effective December 1, 2017, there will be two new Federal Rules of Evidence (Rules 902[13], [14]) that will directly impact e-discovery in the federal courts. These Rule changes are critical because, as aptly put by recently retired Magistrate Judge John Facciola, “[t]he Federal Rules of Evidence were…established to create uniformity in evidence
Continue Reading More Proposed Changes to the Federal Rules that Will Inevitably Impact Electronic Discovery and Federal Practitioners
Critical Road Map for ESI in Litigation
It is the beginning of a new year and I thought it the ideal time to list out those steps that are absolutely critical when an attorney is confronting his/her obligation to produce e-discovery in connection with a litigation. Bear in mind, the below list is not exhaustive and each step is replete with technical and tactical sub-steps and decisions.
What is De-Duplication and How Do I Do It?
When collecting electronically stored information (“ESI”) from multiple custodians (i.e., various individuals/ different sources), there will necessarily be duplicative documents collected in the process. In company-wide e-mail chains, for example, a message is sent to multiple recipients and stored within each recipient’s mailbox. Consider the following: I send an email to two colleagues; a copy of the very same email