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
Continue Reading Boilerplate Objections and Discovery Games Require Little Effort but Result in Big Sanctions

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
Continue Reading Courts Won’t Go “Where Angels Fear to Tread” When Deciding On Search Term Issues

Litigants often disagree about which method of identifying potentially responsive electronically stored information (“ESI”) is best.  Specifically, the use of keywords versus technology assisted review (“TAR”)* is typically the topic of the debate.  In deciding these disputes, Judges have seemingly embraced TAR as preferable, but stop short of mandating TAR’s use, citing to Principle 6 of The Sedona Principles
Continue Reading Judges Make the Case for TAR

The duty to preserve potentially relevant evidence – documentary or electronic – arises when a lawsuit is reasonably anticipated.  Although this is a subjective standard,  Parlux Fragrances, LLC et al v. S. Carter Enterprises, LLC et al.  illustrates a recent decision where a court imposed  sanctions and an adverse inference because the defendants failed to preserve information after receipt of
Continue Reading “You Can’t Heal What You Never Reveal”: Plaintiffs Are Entitled to Sanctions and Adverse Inference at Trial Because Jay-Z and S. Carter Enterprises Destroyed Emails After Litigation Was “Reasonably Anticipated.”

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
Continue Reading The City of Chicago Employs “TAR” to Facilitate Review, But Doing So Is Not Without Issue

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
Continue Reading If the Proportionality Doesn’t Fit, Courts May Cost-Shift

Rule 26(b)(5) of the Federal Rules of Civil Procedure provides that, when a party withholds information otherwise discoverable by claiming the information is privileged or subject to protection as trial-preparation material, the party must:

(i) expressly make the claim; and

(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a
Continue Reading Can the Content of My Privilege Log Jeopardize My Privilege Claim?

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
Continue Reading Self-Collecting ESI Can Be a Dangerous Game

Aldinger v. Alden State Bank is a good reminder of counsel’s obligation to be cooperative in the discovery process.

Aldinger, an employment discrimination case pending in the United States District Court for the Western District of New York, involved a series of discovery disputes including Plaintiff’s motion to compel Defendant to respond to her First Request for the Production of
Continue Reading Federal Judge Finds it is Counsels’ Absence of Good Faith and Cooperation Causing an Increase in Duration and Expense of Litigation

A recent federal district court decision, Lawson et al. v Love’s Travel Stops & Country Stores, Inc., US Dist Ct, MD Pa, 1:17-CV-1266, Carlson, J., 2019, reminds litigants of the need to tailor discovery requests for electronically stored information (“ESI”).

Before the Court was plaintiffs’ motion to compel defendants’ production of “all” text messages on approximately 100 company-owned
Continue Reading Federal Court Denies Request for Wholesale Disclosure of Text Messages