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 (“ESI”)?  A decision out of
Continue Reading Courts Won’t Go “Where Angels Fear to Tread” When Deciding On Search Term Issues

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 AeroSystems, Inc.’s (“Spirit”), plaintiff Larry
Continue Reading If the Proportionality Doesn’t Fit, Courts May Cost-Shift

Rule 26(b)(5) of the Federal Rules of Civil Procedure provides that, when a party withholds information otherwise discoverable by claiming the information is privileged or subject to protection as trial-preparation material, the party must:

(i) expressly make the claim; and

(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a
Continue Reading Can the Content of My Privilege Log Jeopardize My Privilege Claim?

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 Request for the Production of
Continue Reading Federal Judge Finds it is Counsels’ Absence of Good Faith and Cooperation Causing an Increase in Duration and Expense of Litigation

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?

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?

In Youngevity Intl’s Corp. v. Smith (No: 16-cv-00704 [SD CA December 21, 2017]), defendants sought an Order pursuant to Federal Rules of Civil Procedure 26(g) and 37.  The Order required Plaintiffs to remediate an improper discovery production to pay for Defendants’ costs for bringing the motion to compel and for the cost to review various improper prior productions.  Specifically,
Continue Reading A Cooperative Discovery Process Promotes Efficient Advocacy

Electronic discovery (a/k/a ediscovery and e-discovery) is the process of identifying, preserving, collecting, preparing, reviewing and producing electronically stored information (“ESI”) in the context of a legal or investigative process.   In order that counsel may bring discovery issues (including e-discovery issues) to the forefront early on in the development of a case, the Federal Rules of Civil Procedure impose on


Continue Reading Rule 26 and How It Applies to Electronically Stored Information

The short answer is – maybe; if there is any possibility that the information contained on the phone may be relevant to the claim or defense of any party in the lawsuit.

In this action (Brown Jordan Int’l Inc. v. Carmicle, 2015 WL 6142885 (S.D. Fla. Oct. 19, 2015)), plaintiffs sued defendant in the United States District Court


Continue Reading Is Your Spouse’s Phone Subject to Production Under Federal Rule 45?