Knotty Issues of eDiscovery
Agreements to produce ESI solely from search term hits suffers a very fatal flaw: the results are not guaranteed to be relevant to the case. The parties who provided payment mechanisms for drivers of rental cars to pay highway tolls agreed to produce ESI responsive to the following search terms: Smartphone[…]
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I remember visiting the La Brea Tar Pits as a child. Opinions that focus on whether or not parties should use Technology Assist Review always makes me think of mastodons drowning in tar. Asking a court for permission to use predictive coding, or trying to force a party to use[…]
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A Plaintiff sought the production of email and text messages from the Defendant in an employment case with civil rights causes of action. Elkharwily v. Franciscan Health Sys. (W.D.Wash. June 30, 2016, No. 3:15-cv-05579-RJB) 2016 U.S. Dist. LEXIS 85651, at *2-3. The Defendants objected on several privilege grounds, plus the fact[…]
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Published California eDiscovery cases are as rare as California Condors. However, unpublished California opinions provide a lot of insight in how judges see eDiscovery issues in state court. Flagship Theatres of Palm Desert is a California case regarding spoliation of email messages and the preservation of evidence. Even though it[…]
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The Plaintiffs were granted a TRO, and then a clarifying Preliminary Injunction order, for the Defendant to preserve electronically stored information in a case where a former employee went to a competitor with trade secret information. Henry Schein v. Cook (N.D.Cal. June 22, 2016, No. 16-cv-03166-JST) 2016 U.S. Dist. LEXIS[…]
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There are form of production cases that make me mutter, “Say what?” This is one of those cases. In the present case, the parties argued whether they needed to produce ESI as native files or PDFs. The Defendant claimed it would cost a total of $3,000 more to produce ESI[…]
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The Defendants in a medical malpractice case sought discovery from the Plaintiffs related to billing and care records from the Plaintiffs. The problem: the unavailable records were at hospitals in the United Arab Emirates. Al-Ameri v. Johns Hopkins Hosp. (D.Md. May 26, 2016, No. GLR-15-1163) 2016 U.S. Dist. LEXIS 68980,[…]
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Lawyers are eagerly awaiting Courts to start their engines applying the new Federal Rule of Civil Procedure Rule 37(e) for sanctions against a party that failed to preserve ESI. However, the case of Bruner v. Am. Honda Motor Co, is a healthy reminder that Courts will keep ordering parties to enact litigation holds.[…]
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Responding to requests for production requires the producing party to have a plan for document review. What defines that an email message is responsive? What are the privileges in the case? What information needs to be redacted for production? How are privileges asserted in a privilege log? Lawyers who do[…]
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Parties objecting to requests for production cannot simply state the words not “relevant or proportional to the needs of the case,” in the hopes a Judge will sing along like its Purple Rain. Proportionality has to be proven with facts, and lawyers who fail to do so will know what[…]
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