Exclusion of Evidence – Bow Tie Law

How Untimely Discovery Can Get Expert Reports Excluded

June 25, 2018 Josh Gilliland Exclusion of Evidence, Initial Disclosures, Supplemental Disclosures

The Federal Rules of Civil Procedure are to ensure fair play and that there are no “surprises” in a lawsuit. While there are those who long for Perry Mason dramatic cross-examination, the real world has deadlines that matter. The failure to include ESI that supports a party’s defenses in Rule[…]

Drop-by-Drop Water Torture Productions

October 19, 2012 Josh Gilliland e-Discovery, Electronically Stored Information, Email, ESI, Exclusion of Evidence, Request for Production

There are judges who have a way with words when they want to make a point. One example of such judicial prose was by Magistrate Judge Gregory G. Hollows in Botell v. United States: At this juncture, the United States has purportedly been looking for documents for months, yet the[…]

Surprise Videos & Initial Disclosures

September 8, 2011 Josh Gilliland Exclusion of Evidence, Initial Disclosures, Supplemental Disclosures

A Defendant in an SEC case offered video exhibits for trial. The SEC objected, citing that the videos were not included in the Defendant’s Rule 26(a) initial disclosures and should be excluded under Rule 37(c)(1). United States SEC v. Big Apple Consulting USA, Inc., 2011 U.S. Dist. LEXIS 99352, 6-8[…]

In the War of the Roses, It is Best to Change Your Email Password

January 5, 2010 Josh Gilliland e-Discovery, Eavesdropping, Electronically Stored Information, Email, ESI, Exclusion of Evidence

Divorce is ugly. It can be uglier when your estranged spouse has the password to your email account. In Gurevich v. Gurevich, 2009 NY Slip Op 29191 (N.Y. Sup. Ct. 2009), the estranged wife had her ex-husband’s email password since their separation in 2006. The wife accessed the husband’s email[…]

Bow Tie Law 1st Anniversary

December 30, 2009 Josh Gilliland Blogging, Discovery, e-Discovery, Electronically Stored Information, ESI, Exclusion of Evidence, Litigation Hold

December 30, 2009 marks the first anniversary of “Bow Tie Law.” 2009 was a watershed year of case law, with litigation hold opinions coming up weekly this summer; the mandatory exclusion of ESI for the failure to disclose or supplement discovery; and judges holding attorneys to a higher standard for electronically stored[…]

Admissibility of Email Strings and Co-Conspirator Emails

December 7, 2009 Josh Gilliland Conspiracy, Discovery, Document Review, e-Discovery, Electronically Stored Information, Email, ESI, Exclusion of Evidence, Hearsay

The Federal Rules of Civil Procedure are frequent superstars spotlighting requests and production of electronically stored information in case law. Whether or not such discovery is admissible is another story. Park W. Radiology & Park W. Circle Realty v. Carecore Nat’l Llc, 2009 U.S. Dist. LEXIS 110282 (S.D.N.Y. Nov. 19, 2009) is[…]

If It is Lost, It’s Not in Your Possession, Custody or Control under Rule 26(a)

October 30, 2009 Josh Gilliland Deposition, Discovery, Exclusion of Evidence, Initial Disclosures

In a prison medical treatment case, the Plaintiff brought a motion to exclude medical records pursuant to Federal Rule of Civil Procedure Rule 37(c) after the files were not identified in the Defendants’ initial disclosures or produced in discovery. Nance v. Wayne County, 2009 U.S. Dist. LEXIS 96279 (M.D. Tenn.[…]

The Titan Killer: Mandatory Exclusion under Federal Rule of Civil Procedure Rule 37(c)(1)

October 6, 2009 Josh Gilliland Deposition, Discovery, e-Discovery, Electronically Stored Information, Exclusion of Evidence, Initial Disclosures, Supplemental Disclosures

Oracle and SAP are at war. They have exchanged bayonet charges in discovery for two years in a case where Oracle has accused SAP (TomorrowNow) of “systematic and pervasive illegal downloading of Oracle software over approximately six years.” Oracle United States v. Sap Ag, 2009 U.S. Dist. LEXIS 91432 (N.D.[…]

Auto-Exclusion: Undermining Your Own Case with Failed Disclosures

October 1, 2009 Josh Gilliland Discovery, Exclusion of Evidence, Initial Disclosures

Discovery Rules with Teeth Here is a great rule with teeth: If you do not disclose ESI or documents under Federal Rule of Civil Procedure Rule 26(a), they are automatically excluded under Federal Rule of Civil Procedure Rule 37(c)(1). In Melczer v. Unum Life Ins. Co. of Am., 2009 U.S.[…]