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Much Ado About Metadata?

By Farrell Fritz P.C. on August 8, 2019
Posted in E-discovery, ESI, Metadata

Anyone reading this blog has likely heard about metadata and its potential role in a litigation (See, “Never Agree to Do Something Your Client Cannot Do;” “The Perils of Self-Collection;” and “A Lawyer’s Obligation to be Technologically Competent – Part 4”).  But we must remember that if metadata is an integral part…
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The Document Demand That Seeks Electronically Stored Information

By Farrell Fritz P.C. on July 12, 2019
Posted in E-discovery, ESI, Metadata, Preservation

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…
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The Perils of Self-Collection

By Farrell Fritz P.C. on September 13, 2018
Posted in ESI, Metadata, Sanctions, Spoliation

“Self-collection” refers to the situation in which the custodians of information potentially relevant to a legal proceeding undertake to identify and collect that information on their own and provide the collected content to counsel.

The typical self-collection situation involves some limited instruction or oversight from counsel (in-house or outside).  For example, outside counsel issues a litigation hold notice identifying various…
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The Seven Commandments of Proportionality in ESI*

By Farrell Fritz P.C. on July 19, 2017
Posted in ESI, Metadata

In In Re State Farm Lloyds, (Texas Supreme Court [May 26, 2017] 2017 WL 2323099), the Supreme Court of Texas elaborated on the standard applied to evaluate and resolve production disputes. Specifically, the Court opined (perhaps not surprisingly) that of “the guiding principles informing the exercise of discretion over electronic-discovery disputes, proportionality is the polestar.” Id. at *15.
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Failure to Cooperate During Discovery Results in Expensive Costs for Reproduction

By Farrell Fritz P.C. on September 2, 2015
Posted in Cooperative, ESI, Litigation Budget

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…

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Never Agree to Do Something Your Client Cannot Do

Posted on March 25, 2015
Posted in Best Practices, Case Summary, Preliminary Conference

Under the New York State Supreme Court Commercial Division Rules counsel are expected to agree at the Preliminary Conference as to the method and manner of their e-discovery (“ESI”) production.  Counsel will sometimes readily agree to produce emails in their native format, with attendant metadata, without knowing whether or not their clients are able comply with such requirements.

 This appears…

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Better Not Toss A “Crashed” Computer

Posted on February 25, 2015
Posted in Best Practices, Case Summary

Judge Kimba M. Wood found for the first time in the Second Circuit in Dorchester Financial Holdings Corp. v Banco BRJ, S.A. that a party must not destroy a “crashed” computer, or it will be subject to a punitive adverse   inference.  One of the issues in the case was the propriety of certain documents which the defendant claimed were forged. …

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