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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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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Can the Content of My Privilege Log Jeopardize My Privilege Claim?
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
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Federal Judge Finds it is Counsels’ Absence of Good Faith and Cooperation Causing an Increase in Duration and Expense of Litigation
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
In What Format Should I Make My Production? And, Does Format Matter?
The issue of production format when dealing with ESI is often the subject of discussion and disagreement. If possible, the parties to the litigation should agree at the outset to the production format. In fact, a conversation about production format, metadata and redactions (among other things) should occur at the preliminary conference and/or the Rule 26 conference. However, this
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The Rule 26 Conference: Necessary Evil or Critical for Streamlined and Efficient Discovery?
Often viewed as a necessary evil, the Rule 26(f) conference can serve as an invaluable opportunity to meaningfully discuss discovery such that the process is streamlined and seeks to avoid unnecessary (and often costly) disputes. Generally speaking, Rule 26(f), among other things, sets the deadline for the conference as soon as practicable and at least 21 days before the scheduling
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A Cooperative Discovery Process Promotes Efficient Advocacy
In Youngevity Intl’s Corp. v. Smith (No: 16-cv-00704 [SD CA December 21, 2017]), defendants sought an Order pursuant to Federal Rules of Civil Procedure 26(g) and 37. The Order required Plaintiffs to remediate an improper discovery production to pay for Defendants’ costs for bringing the motion to compel and for the cost to review various improper prior productions. Specifically,
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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
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Judge Finds Defense Counsel’s Reliance upon Pre-Amendment Rule 26 in a Motion to Compel the Equivalent of Bad Faith – Resulting in Significant and Embarrassing Sanctions
In Fulton v. Livingston Financial LLC, 2016 WL 3976558 (W.D. Wash. July 25, 2016), U.S. District Judge James L. Robart sanctioned a defense lawyer who “inexcusabl[y]” relied on outdated case law and pre-2015 amendments to Federal Rule of Civil Procedure 26(b) in motion practice before the court.
On April 13, 2015, Plaintiff (Richard Fulton) filed suit against Defendants for
Continue Reading Judge Finds Defense Counsel’s Reliance upon Pre-Amendment Rule 26 in a Motion to Compel the Equivalent of Bad Faith – Resulting in Significant and Embarrassing Sanctions
The Western District Declines to Compel Additional Discovery
Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2016 WL 7208753 (W.D.N.Y. Dec. 13, 2016)
In this case, pending before the Court was a motion by Armstrong Pump Inc. (“Armstrong”) to compel formal production of certain documents that defendant Optimum Energy LLC (“Optimum”) considered the functional equivalent of its proprietary source code. This “formal production” Armstrong sought to compel consisted of
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