Historically, the legal profession has been reluctant to embrace technology and electronic discovery in the practice of law.  Indeed, practitioners often still exchange discovery in paper format or ignore, altogether, medium, like text messages, that may be repositories of relevant information.  A recent case — In DR Distributors, LLC v 21 Century Smoking, Inc. – is an example supporting the
Continue Reading Court Enforces Strict Sanctions for Failing to Be Competent in ESI Obligations

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

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 the 4th and final blog 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, here to read Part 2, and here to read Part 3].

You have assessed the discovery needs of your matter, implemented
Continue Reading A Lawyer’s Obligation to be Technologically Competent – Part 4

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

It has become apparent that lawyers must keep informed of changes in the law, including the benefits and risks associated with relevant technology.  And, relevant technology is not limited to electronic dockets (i.e., NYSCEF, and ECF) and preserving text messages a client sends about his/her representation.  Rather, relevant technology includes today’s world of social media including Facebook, Twitter, Instagram, and
Continue Reading The Risks of Social Media in Litigation

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

According to the Complaint filed in Michael Distefano and Nicole Distefano v Law Offices of Barbara H. Katsos, PC and Barbara H. Katsos, Michael DiStefano and a non-party were owners of a limited liability company that was the franchisee of three Cold Stone Creamery Inc. ice cream parlors.  In 2006, the three stores suffered financial difficulties due to an extended


Continue Reading An Attorney Acting ‘With a Pure Heart and An Empty Head’ is Sanctioned for Spoliating Emails

It is the beginning of a new year and I thought it the ideal time to list out those steps that are absolutely critical when an attorney is confronting his/her obligation to produce e-discovery in connection with a litigation.  Bear in mind, the below list is not exhaustive and each step is replete with technical and tactical sub-steps and decisions. 


Continue Reading Critical Road Map for ESI in Litigation