Archives: Lawyers Duties

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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

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 Discusses The Obligation To Preserve Text Messages Under New Rule 37(e)

In a recent decision from the Western District of North Carolina, the Court discussed the importance of preserving text messages from accidental destruction due to a loss of a party’s cell phone.  In Shaffer v. Gaither, 2016 U.S. Dist. LEXIS 118225 (W.D.N.C. Sept. 1, 2016), the plaintiff brought sexual harassment claims against her former employer … 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Federal Court In Washington Sanctions Attorney For Citing “Badly Out Of Date” Case Law

Defense counsel was sanctioned by a federal court in Washington for bringing a motion to compel in bad faith, with the court finding that defense counsel’s citation of case law analyzing a prior version of the Federal Rules of Civil Procedure was “inexcusable.” In Fulton v. Livingston Fin. LLC, (W.D. Wash.), Defendants cited case law … Continue Reading

The Exploitation of America’s Cybersecurity Vulnerabilities by China and Other Foreign Governments

The Chinese People’s Liberation Army attacks American companies every day to try to steal trade secrets and gain commercial advantage for state controlled businesses. Criminal hackers can cause tremendous damage, whether trained in China or not. If a high level expert, such as any member of China’s elite Unit 61398, aka Comment Crew, gets into your system, they … Continue Reading

To Cull a Mockingbird: the popular, but risky, “keyword” collection filter

This is part four of the continuing series on two-filter document culling. Please read part one and part two and part three first. Hopefully you will like this part four sequel better than Harper Lee’s sequel. First Filter Some first stage filtering takes place as part of the ESI collection process. The documents are preserved, but not collected, … Continue Reading

The Culling Fields: some software is better than others at efficient document culling

This is part three of the continuing series on two-filter document culling. Please read part one and part two first. A word of caution before I get into the weeds of how two-filter document culling works. Although this method is software agnostic, in order to fully emulate this method, your document review software must have certain basic capabilities. … Continue Reading

License to Cull: why efficient and effective document review is important to our system of justice

This is part two of the continuing series on two-filter document culling. Please read part one first. Every attorney has a license to cull irrelevant data before beginning expensive linear review. In fact, it is fair to say that they have a duty to do so to protect their clients and country from waste and abuse. … Continue Reading

The Importance of Cybersecurity in eDiscovery

Cybersecurity is job number one for all litigation attorneys who handle confidential computer data. That’s because electronically stored information (ESI) held by law firms is now subject to frequent attack by criminal hackers. They have figured out that attorneys store valuable data of their clients in law firm computers. So when hackers cannot get at … Continue Reading

District Court in Washington D.C. Exposes Illegal e-Discovery by Department of Justice

U.S. Magistrate Judge John M. Facciola in Washington D.C., who is a well-known expert in e-discovery, issued a Memorandum Opinion and Order dated March 7, 2014, containing a stunning rebuke of the Department of Justice. His order reveals that the Department of Justice has been routinely using over-broad search warrants for email. The warrants allow the Department to … Continue Reading

Evidence Preservation: An ancient legal doctrine that is still a major concern to all litigators

Preservation is an ancient, well-established common law doctrine. Armory v. Delamirie, 1 Strange 505, 93 Eng. Rep. 664 (K.B.1722) (chimney sweep boy and the missing diamond); Goodman v. Praxair Services, Inc. 632 F.Supp.2d 494, (D.Md. 2009) (Grimm, J.). Apparently the doctrine goes back even further to the days of Roman law. Ancient or not, the doctrine … Continue Reading

Facebook’s “Hacker Way” of Management and e-Discovery

Facebook’s regulatory filing for its initial public stock offering included a letter to potential investors by 27 year old billionaire Mark Zuckerberg. The letter describes the culture and approach to management that he follows as CEO of Facebook. Most high-tech companies today follow this same management credo. Zuckerberg calls it the Hacker Way. Mark did not invent this culture. … Continue Reading

Plaintiff’s Backyard Summer BBQ of Her Computer Leads to Sanctions

Parties sometimes go to great lengths to avoid providing information during discovery. A case out of Mobile, Alabama, shows some people will even go so far as to burn their computer in a backyard BBQ. Evans v. Mobile Cnty. Health Dep’t, 2012 U.S. Dist. LEXIS 8530 (S.D. Ala. 2012). The plaintiff in this case was a former employee … Continue Reading

Fishing Expedition Discovers Laptop Cast into Indian River

There is a spot on the Indian River east of Orlando where the fish really byte. That’s because a defendant employee in a RICO case tossed her laptop into that river with millions of incriminating bits and bytes. Simon Property Group, Inc. v. Lauria, 2012 U.S. Dist. LEXIS 184638 (M.D. Fla. 2012). Defendant destroyed the evidence with … Continue Reading

Employer Gets Adverse Inference Sanction for Failing to Preserve Data

Finding the defendant-employer, Millard Refrigerated Services, permitted relevant data to be deleted after it was on notice of potential litigation, the court granted the plaintiff’s motion for sanctions and agreed to provide the jury an adverse inference instruction against the defendant. Pillay v. Millard Refrigerated Services, 2013 WL 2251727 (N.D. Ill. May 22, 2013). The plaintiff, … Continue Reading

More Courts Are Requiring Disclosure of Keywords

There is a clear trend in the law for a producing party to make disclosure of the keywords used to find documents responsive to a request for production. Moreover, all the requesting party has to do is ask. There is no requirement for a showing of good cause. This represents a further erosion of the … Continue Reading

Party Sanctioned for Deleting Facebook Account

Social media websites have become an increasingly important source of information in lawsuits.  This is especially true where a party is claiming that an injury prevents him or her from performing certain activities or that he or she is experiencing emotional distress.  A person’s posts on Facebook or similar social media websites provide a wealth … Continue Reading

Controlling e-Discovery Abuses with Rule 26(g)

Rule 26(g) of the Federal Rules of Civil Procedure (often called the Rule 11 of discovery) governs an attorney’s signature on discovery responses. A judge must impose sanctions if Rule 26(g) is violated. In spite of the rule’s requirement, we have not seen a sanction imposed under this rule…until now. U.S. Magistrate Judge Susan Gauvey … Continue Reading