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
FRCP
Judges Make the Case for TAR

Litigants often disagree about which method of identifying potentially responsive electronically stored information (“ESI”) is best. Specifically, the use of keywords versus technology assisted review (“TAR”)* is typically the topic of the debate. In deciding these disputes, Judges have seemingly embraced TAR as preferable, but stop short of mandating TAR’s use, citing to Principle…
“You Can’t Heal What You Never Reveal”: Plaintiffs Are Entitled to Sanctions and Adverse Inference at Trial Because Jay-Z and S. Carter Enterprises Destroyed Emails After Litigation Was “Reasonably Anticipated.”

The duty to preserve potentially relevant evidence – documentary or electronic – arises when a lawsuit is reasonably anticipated. Although this is a subjective standard, Parlux Fragrances, LLC et al v. S. Carter Enterprises, LLC et al. illustrates a recent decision where a court imposed sanctions and an adverse inference because the defendants failed to…
The City of Chicago Employs “TAR” to Facilitate Review, But Doing So Is Not Without Issue

In today’s “e”-dense world, attorneys often look to leverage technology to facilitate production of electronically stored information (“ESI”) during the discovery process. We do so in an effort to streamline the collection, review and production process whereby containing costs. However, as recent decisions demonstrate, parties often disagree on what methodology to use and which analytic…
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…
Self-Collecting ESI Can Be a Dangerous Game

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 …
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…
Federal Court Denies Request for Wholesale Disclosure of Text Messages

A recent federal district court decision, Lawson et al. v Love’s Travel Stops & Country Stores, Inc., US Dist Ct, MD Pa, 1:17-CV-1266, Carlson, J., 2019, reminds litigants of the need to tailor discovery requests for electronically stored information (“ESI”).
Before the Court was plaintiffs’ motion to compel defendants’ production of “all” text…
A Cautionary Tale About How Not to Conduct Discovery in Federal Court

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…
How to Defensibly Limit Data During Discovery

Technology has revolutionized, among other things, the way people conduct business, store information and communicate with others. And, despite the many efficiencies and benefits of technology, a downside of this “revolution” is the creation of countless files that may later be subject to review and potential production during litigation /investigation proceedings. Indeed, even relatively small…