Parties Can’t Pick and Choose What’s Privileged or Not

Electronically Stored Information (ESI) is far more than communications sent between parties; a party’s investigators can also create ESI. In a lawsuit brought by PETA against at a zoo for the treatment of animals under the Endangered Species Act, the Defendants sought photos and videos surreptitiously recorded, and related investigatory[…]

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Lessons in Reasonable Preservation of Electronically Stored Information

Determining the scope of discovery is of critical importance for defining a party’s duty to preserve duty. Parties legitimately can fight over whether one party’s preservation strategy is too narrow. Magistrate Judge Erin Wilder-Doomes decided this issue in a securities and unfair trade practices case in Louisiana arising from a[…]

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Lessons in Producing 4.2 Million Search Term Hits All Designated Attorney-Eyes Only

Discovery requires thoughtful planning on how to search for electronically stored information, conferring with the opposing party on search methodologies, and following stipulations on designating ESI as Attorney-Eyes Only (AEO). The Plaintiffs in Youngevity Int’l Corp. v. Smith produced 4.2 million search term hits, designated them all AEO, and failed to[…]

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Everlaw Guest Post: When Has a Producing Party Completed Document Review?

“eDiscovery Day” is December 1 in recognition of the effective dates for the 2006 and 2015 Amendments to the Federal Rules of Civil Procedure. Over the last decade, eDiscovery has dramatically impacted how attorneys conduct document review. In my guest post for Everlaw on When Has a Producing Party Completed[…]

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Depositions Instead of Searching for Responsive Email?

Proportionality analysis can yield surprising results. In a case involving the alleged breach of a patent license agreement over test cups used to screen urine for illegal drugs, the plaintiff sought email from two custodians knowledgeable of the Defendant’s marketing/sales and design/use of test cups. Rembrandt Diagnostics, LP v. Innovacon,[…]

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Scanning Paper Makes the Production ESI And Not a Document

Anderson Living Trust v. WPX Energy Prod., LLC, 2014 U.S. Dist. LEXIS 31025, 3-4 (D.N.M. Mar. 6, 2014), is a detailed review of production requirements under Federal Rule of Civil Procedure Rule 34(b)(2)(E). The crux of the case centered on whether scanning paper documents to PDF’s made the discovery “electronically[…]

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