Yikes!  No practitioner wants to be on the receiving end of a decision that starts with the title of this post.  And yet, that’s precisely how Magistrate Judge Bloom started her decision in Abbott Laboratories v. Adelphia Supply USA (15 cv 5826 [CBA] [LB]), ECF No. 1545 Abbott serves as an important reminder to practitioners that we need to
Continue Reading A Cautionary Tale About How Not to Conduct Discovery in Federal Court

This is Part 3 in a multi-part blog discussing various critical requirements that can serve as the road map to allow a lawyer to fulfill his/her duty of technological competence. [Click here to read Part 1 and here to read Part 2]..

After you have assessed the discovery needs and issues in a given matter, and you have implemented appropriate
Continue Reading A Lawyer’s Obligation to be Technologically Competent – Part 3

The role of electronically stored information (“ESI”) and new technologies has grown tremendously in recent years.  This growth has a direct impact on discovery specifically, and the practice of law, generally.   And so, the new practical reality is that attorneys need to be technologically literate and competent.  This should come as no surprise to those who read my blog.  Earlier
Continue Reading A Lawyer’s Obligation to be Technologically Competent – Part I

Angela Lawrence (“Lawrence”) was a plaintiff in a civil rights action that alleged officers of the New York City Police Department (“NYPD”) entered her home in August 2014 without a warrant, pushed her to the ground, damaged her property, and stole $1,000 in cash.   In September 2016, Lawrence provided photographs to her attorney (“Leventhal”) that she claimed depicted the condition
Continue Reading The Dangers of Counsel Not Being Active Participant in the Discovery Process

In 2016, Florida became the first state to mandate technology training for lawyers, when it adopted a rule requiring lawyers to complete three hours of CLE every three years “in approved technology programs.”  The requirement went into effect on January 1, 2017.  On April 20, 2018, the North Carolina State Bar Council approved a proposed amendment to the lawyer’s annual
Continue Reading Is Mandatory Technology Training For Lawyers Headed to New York?

United States v. New Mexico State Univ., No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017)

This case, which arises from allegations of pay discrimination by New Mexico State University (“NMSU”) based on gender, in violation of Title VII, serves as an important reminder that all counsel – irrespective of one’s computer know-how – understand their ESI obligations and
Continue Reading Cooperation and Competence are Critical, Concludes One Court

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

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


Continue Reading A Few ESI Musts For 2016

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


Continue Reading Will New York Follow California’s Lead?