Follow the Court Order: If You are Ordered to Produce Searchable PDF’s, Don’t Produce TIFFs without Searchable Text

Gamesmanship is the harbinger of bad lawyer reputations.  Not obeying Court orders can be the death warrant on how the judge will view you every time you appear in her courtroom.  One can imagine how things will go for a party when this is the opening line of an opinion:[…]

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Reckless Abandon: Lost Hard Drives and Sanctions

In complex commercial litigation today, virtually all discovery involves electronic discovery to some extent. It also is well known that absent affirmative steps to preserve it, at least some electronically stored information (“ESI”) is likely to be lost during the course of litigation through routine business practices or otherwise. These[…]

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Mutually Assured Destruction: Striking Undisclosed ESI and Late Disclosed Witnesses

Trial practice is an art of managing your discovery, knowing your calendar deadlines and pulling part your opponent’s case by striking their key exhibits with motions in limine.  The following motions from Debose v. Broward Health to exclude two of the Plaintiffs’ witnesses and late disclosed Defense email messages sounds like the[…]

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What Litigation Hold? Failing to Image Hard Drives and Other Discovery Mistakes

Plunk v. Vill. of Elwood, 2009 U.S. Dist. LEXIS 42952 (N.D. Ill. May 20, 2009) is a civil rights case with a summer time trial date against a local government, village officials and the police department.  The Plaintiffs took the Defendants to task for failing to image six hard drives[…]

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Is ONE Keyword Adequate for a Search?

Magistrate Judge Facciola’s Asarco, Inc. v. United States EPA, 2009 U.S. Dist. LEXIS 37182 (D.D.C. Apr. 28, 2009) dealt with a very brief issue: Was one keyword adequate for the search of electronically stored information?  Short answer: No In Asarco, the Plaintiff opposed a summary judgment motion and sought leave[…]

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Who Delivers a Litigation Hold Notice to the Post Office?

Procedural Overview A mail clerk sued the United States Post Office and settled her lawsuit 1999.  The Plaintiff sued the Post Office again, claiming the Defendants engaged in a campaign of harassment. The Plaintiff brought a second lawsuit for violations of Title VII and breach of contract. Phillips v. Potter,[…]

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Producing Social Networking Profiles: What Court has Jurisdiction?

A Facebook user in Massachusetts was facing criminal charges in Massachusetts for criminal harassment and threats to commit a crime from Facebook messages. Skerry, 2009 U.S. Dist. LEXIS 38804, 1-2 (D. Cal. 2009). The Petitioner sought the emergency deposition of Facebook’s “recorder keeper” because of the concern Facebook periodically purged its information system. Skerry, 2-4.

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