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
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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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Important Update for Those Who Practice in the Commercial Division of the NYS Supreme Courts
On October 1, 2018, a new Rule (specifically, a new subdivision to existing Rule 11-e) of the Commercial Division Rules, will go into effect.
Rule 11-e governs Responses and Objections to Document Requests. The new subdivision, promulgated by administrative Order of Chief Administrative Judge Lawrence K. Marks, governs the use of technology-assisted review (“TAR”) in the discovery process.
Is a $2.7 Million Dollar E-Discovery Sanction Appropriate In a Lawsuit Valued at $20,000? The Second Circuit Says, Yes.
In 2012, Klipsch Group Inc. (“Klipsch”), a manufacturer of sound equipment, filed a complaint against ePRO E-Commerce Ltd. (“ePRO”), alleging an ePRO subsidiary was selling counterfeit headphones. Through discovery demands, Klipsch called for the production of information relevant to the sale of the allegedly infringing product, including emails and specific sales data. Eventually, however, it became clear that ePRO was
Continue Reading Is a $2.7 Million Dollar E-Discovery Sanction Appropriate In a Lawsuit Valued at $20,000? The Second Circuit Says, Yes.
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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When Are Redactions Based Upon Relevance (or, a Lack Thereof) Permissible?
In IDC Financial Publishing, Inc. v. Bonddesk Group, LLC (15-cv-1085-pp, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)), the Eastern District of Wisconsin granted IDC’s motion to compel the production of more than 600 documents that had previously been produced by Bonddesk with extensive non-responsive redactions applied.
Bonddesk argued that the applied redactions were necessary to protect confidential business
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Cooperation and Competence are Critical, Concludes One Court
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
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