Archives: Best Practices

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Court Holds That Self-Selection Of Emails By Employee Satisfies Discovery Obligations

In Mirmina v. Genpact, LLC, Civil Action No. 3:16-CV-00614 (D. Conn. July 27, 2017), a federal court in an employment discrimination matter denied the plaintiff’s motion to compel discovery, finding that the defendant’s reliance on an employee involved in the litigation to self-select relevant documents was appropriate under the circumstances In this matter, the plaintiff … Continue Reading

Lack Of Prejudice Precludes Sanctions Following Automatic Deletion Of Emails

Contributing Author: Kathryn B. Moynihan Magistrate Judge Iain D. Johnston recently held that sanctions were not warranted under Fed. R. Civ. P. 37(e) against a defendant who admitted to erroneously destroying electronically stored information (ESI). While the court did not condone the defendant’s actions (describing them as “disturbing”), it reasoned that the ESI “did not … Continue Reading

Court Issues Warning To The Bar Regarding Use Of “Boilerplate” Discovery Objections

In Liguria Foods, Inc. v. Griffith Laboratories, Inc., Judge Mark Bennett of the United States District Court for the Northern District of Iowa required both plaintiff and defense counsel to show cause why they should not be sanctioned for discovery abuses based on the excessive use of “boilerplate” objections to discovery requests.  The issue arose when the … Continue Reading

California Court Compels Defendant to Re-Produce Electronically Stored Information in Format Requested by Plaintiffs

A California federal trial court has granted the plaintiffs’ motion to compel re-production of electronically stored information (“ESI”) in native format with all associated metadata, while also granting plaintiffs their “reasonable expenses” incurred, including attorneys’ fees, in making their motion.  In Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ., No. 2:11-cv-3471 KJM AC … Continue Reading

Court Rejects Overly Broad Request For Forensic Imaging Of Plaintiff’s Personal Computers

An Illinois appellate court has vacated a trial court’s order compelling the forensic imaging of several personal computers used by plaintiff, applying a balancing test that takes into account both the proportionality rule and the privacy concerns implicated in the request.  In Carlson v. Jerousek, 2016 IL App (2d) 151248, P4 (Ill. App. Ct. 2d … Continue Reading

Court Rules That Proportionality And Cooperation Are Essential In Resolving E-Discovery Disputes

Magistrate Judge R. Steven Whalen agreed with UPS that it did not have to spend six months and $120,000 to recover data stored on backup tapes that may not be relevant to the case if UPS prevails in its efforts to limit the scope of the putative class’s claims.  Instead, the Court directed the parties … Continue Reading

Forensic Examination of Plaintiff’s Electronic Devices Disallowed Because It Was Not Proportional To The Needs of the Case

District Court Judge Jorge L. Alonso recently upheld Magistrate Judge Michael T. Mason’s ruling in a sex discrimination and hostile work environment case that forensic examination of a plaintiff’s electronic devices was not proportional to the needs of the case because any benefit the inspection might provide would be outweighed by the plaintiff’s privacy and … Continue Reading

Cooperation Imperative In Searching Electronically Stored Information

Senior United States District Judge Terrence McVerry granted a party’s motion to compel the opposing party to meet and confer regarding search terms to apply to electronically stored information. In Pyle v. Selective Ins. Co. of Am., 2016 U.S. Dist. LEXIS 140789 (W.D. Penn. September 30, 2016), Plaintiff Pyle brought claims against former employer, alleging … Continue Reading

Experts Praise Ralph Losey’s New Book: E-DISCOVERY FOR EVERYONE

Jackson Lewis’ National e-Discovery Counsel, Ralph Losey, has just released a new book, e-Discovery for Everyone. Experts are praising e-Discovery for Everyone as an important book for both pleasure and reference. As the title suggests, Ralph’s book is written for everyone with an interest in e-discovery. It is classified by the ABA as an introductory to intermediate level book. … Continue Reading

Court Sanctions Both The Defendants’ CEO And Defendants’ Counsel For Discovery Misconduct

District Judge Katherine Polk Failla imposed significant sanctions in Arrowhead Capital Finance, LTD v. Seven Arts Entertainment, Inc., 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016), following Defendants’ repeated failure to cooperate in discovery and comply with the terms of her previously issued discovery orders.   The Backdrop.  Plaintiff sued Defendants in 2014 seeking to … Continue Reading

Federal Court Refuses To Compel Defendant To Produce Non-Responsive Documents That Hit On Agreed Upon Search Terms

A federal court in Texas recently refused to enforce the parties’ discovery agreement with respect to plaintiff’s request that the defendant produce all non-privileged documents responsive to search terms agreed to over email.  In BancPass, Inc. v. Highway Toll Admin., LLC, 2016 U.S. Dist. LEXIS 96978 (W.D. Tex. July 26, 2016), the Court addressed a dispute between two … Continue Reading

Marginal Discovery Disallowed Because It Was Not Proportional To The Needs Of The Case

Under a ruling issued by a federal district court in Arizona (In re Bard IVC Filters Prods. Liab. Litig., 2016 BL 306366, D. Ariz., No. MDL 15-02641-PHX DGC, 9/16/16), the new Federal Rules for discovery allowed the defendant to avoid producing electronically-stored foreign communications in multidistrict litigation over allegedly faulty medical devices. The decision is notable … Continue Reading

A Party May Comply With Rule 34 By Identifying Its Search Parameters As Opposed To Identifying Withheld Documents

According to a recent decision of the U.S. District Court for the District of Kansas, a party may satisfy its obligations under  Rule 34 when—in response a demand for the production of documents—the party states how the party limited its search for responsive documents, but does not specifically identify the documents that have been withheld. In Rowan … Continue Reading

Federal Court In Washington Denies Motion To Compel Restoration Of Backup Tapes

A federal court in Washington recently denied a motion to compel the production of archived emails stored on backup tapes, rejecting the plaintiffs argument that the defendants culpability in failing to preserve the emails in a more accessible format outweighed the burden and cost to the defendant of restoration. In Elkharwily v. Franciscan Health System … Continue Reading

Unsupported And Exaggerated Assertions Regarding The Burden Of Production Will Not Persuade The Court

By now we’re all familiar with the language recently implemented in the Federal Rules of Civil Procedure, providing employers with some protection against unreasonable demands related to ESI: “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”  Fed. … Continue Reading

Federal Court In Virginia Rejects Defendant’s Proportionality Argument

A federal court in Virginia recently granted a plaintiff’s motion to compel the defendant to search its computer systems for electronically stored information, rejecting the defendant’s argument that the requested ESI was “inaccessible” due to burden and cost and that the requested discovery was not proportional to the needs of the case.  In Wagoner v. … Continue Reading

May A Company “Preserve In Place” To Satisfy Its Preservation Obligations

A common question that often arises is whether to physically collect/copy a person’s e-mail account once that person is placed on a litigation hold.  Rather than copy the e-mail account, many companies will simply turn off the “auto-delete” function and issue the employee a preservation notice. By doing so, the company essentially is preserving in place.  … Continue Reading

Explanation of the Legal Profession’s Remarkably Slow Adoption of Predictive Coding

Well-known predictive coding expert attorney, Maura Grossman, and her husband, noted information scientist, Gordon Cormack, recently began on article in Practical Law magazine with the assertion: Adoption of TAR has been remarkably slow, considering the amount of attention these offerings have received since the publication of the first federal opinion approving TAR use (see Da Silva Moore v. … Continue Reading

Conclusion to 14 Part Series on Document Culling

This is Fourteenth and Final blog in a series on two-filter document culling. (Yes, we went for and obtained a world record on longest law blog series!) Document culling is very important to successful, economical document review. Please read parts one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve and thirteen before this one.  Conclusion There is much more to efficient, effective review than just using … Continue Reading

Employers Have An Obligation To Provide Meaningful Direction To Employees In Email Searches, But Employers Can’t Be Compelled To Recover Company Emails Stored On Personal Accounts Of Employees

This blog post is written by Douglas Johnston in our San Francisco office. A recent case from the Northern District of California raises the importance of actively engaging with employees to coordinate the search for documents and electronically-stored information to comply with the employer’s discovery obligations. At the same time, the Court ruled that an … Continue Reading

Case Example of Quick Peek Type of Production Without Full Manual Review

This is part Thirteen of the continuing series on two-filter document culling. (Yes, we are going for a world record on longest law blog series.:) Document culling is very important to successful, economical document review. Please read parts one, two, three, four, five, six, seven, eight, nine, ten, eleven and twelve before this one. Limiting Final Manual Review In some cases you can, with client permission (often insistence), … Continue Reading

Review of the Basic Idea of Document Culling

This is part Twelve of the continuing series on two-filter document culling. (Yes, we are going for a world record on longest law blog series.:) Document culling is very important to successful, economical document review. Please read parts one, two, three, four, five, six, seven, eight, nine, ten and eleven before this one. Review of Basic Idea of Two Filter Search and Review Whether you use … Continue Reading

Kulling With or Without Robots: Second Stage Predictive Coding Culling

This is part Eleven of the continuing series on two-filter document culling. (Yes, we are going for a world record on longest law blog series.:) Document culling is very important to successful, economical document review. Please read parts one, two, three, four, five, six, seven, eight, nine and ten before this one. Irrelevant Training Documents Are Important Too In the second filter you are … Continue Reading
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