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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

Electronically stored information (“ESI”) is ubiquitous and most people and companies are utilizing paperless documents in some form (i.e., e-mails, text messages, IMs).  The many forms of ESI coupled with the introduction of varying data sources such as smartphones, cloud storage, iPads, and tablets, has dramatically expanded the available potential sources of discovery in a civil litigation.  To obtain this…
Continue Reading The Document Demand That Seeks Electronically Stored Information

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…
Continue Reading In What Format Should I Make My Production? And, Does Format Matter?

I am often asked by clients and subscribers to the blog, What is E-discovery?  And so, this week’s post is intended to respond to that question.

E-discovery is the abbreviated term for electronic discovery and refers to the process in which electronic data (as compared to paper or object information) is sought, located, secured, reviewed and produced for use as…
Continue Reading What Is E-Discovery?

De-duplication (“de-duping”) is the process of comparing electronic records based on their content and characteristics and removing duplicate records from the data set so that only one instance of an electronic record is produced when there two or more identical copies. De-duplicating a data set is a smart way to reduce volume and increase efficiencies of review.  There are three…
Continue Reading De-duplication: What is it and Why Should I Use it?

The Electronic Discovery Reference Model (EDRM) is a framework that outlines standards for the recovery and discovery of digital data.  An EDRM diagram created by Duke Law (https://www.edrm.net/frameworks-and-standards/edrm-model/) represents a conceptual view of the e-discovery process, which is not a linear process, necessarily.  In fact, you may engage in some, but not all of the steps identified in…
Continue Reading What is EDRM?

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

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

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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Continue Reading The Western District Declines to Compel Additional Discovery

The amendment to Federal Rule of Civil Procedure 26(b)(1) (which defines the scope of permissible discovery) did away with the timeworn “reasonably calculated to lead to the discovery of admissible evidence” standard.  In its place is now the “proportionality standard,” which explicitly imposes a responsibility on litigants to tailor their discovery requests to account for the significance of the information

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Continue Reading Proportionality Is the Critical Inquiry in Federal Court Discovery