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 cases routinely involve the collection
Continue Reading How to Defensibly Limit Data During Discovery

Rule 1 of the Federal Rules of Civil Procedure calls upon courts and litigants to “secure the just, speedy, and inexpensive determination of every action and proceeding.” And so, it comes as no surprise that technology assisted review (“TAR”) is being widely embraced by the legal profession.

What is TAR?

TAR (also called predictive coding, computer assisted review, or supervised
Continue Reading Technology Assisted Review At a Glance

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
Continue Reading The Rule 26 Conference: Necessary Evil or Critical for Streamlined and Efficient Discovery?

For a long time, New York state and federal courts were out of sync with one another with regard to a litigant’s discovery obligations. For example, the state courts in New York required a party to take steps to preserve discovery materials upon the commencement of a litigation, while the federal courts required preservation upon the reasonable anticipation of litigation. 


Continue Reading The Amendments to the Federal Rules of Civil Procedure, the Court of Appeals’ Pegasus Aviation Decision and What They Mean for New York Litigators

After sitting on the sidelines for years, the New York Court of Appeals (the highest appellate court in New York) has finally ruled on the standard to be applied to claims alleging spoliation of ESI. The decision, however, which was late in coming, places New York at odds with the new Federal Rules of Civil Procedure.  This post will address


Continue Reading New York Court of Appeals Finally Speaks on Ediscovery Spoliation, But is it Now Out of Step with the Federal Courts?

In a previous post we discussed generally the idea of a cooperative discovery process and highlighted how the proposed amendments to the Federal Rules embrace this principal (see, e.g., proposed amendments to Federal Rule Civil Procedure [“FRCP”] 1).  Here, we discuss how the concept of a cooperative discovery process– even apart from the specific mandates in the FRCP –


Continue Reading The Importance of a Cooperative Discovery Process