Knotty Issues of eDiscovery
Discovery surprises are rarely fun for producing parties. In a case where the parties had an ESI Protocol outlining emails to be searched, the Defendants sought a Court order for the Plaintiffs to search the CEO’s personal Gmail account. The Defendants offered an email exchange they discovered from the CEO[…]
Read more
Search terms are a lot like the game Codenames, where parties find themselves guessing terms of art to discover relevant electronically stored information. In a lawsuit between news-aggregator cell-phone apps, the Plaintiffs learned the Defendants referred to the Plaintiff’s app by the codename “Ajax.” The Defendants admitted there were 5,126[…]
Read more
Proportionality can appear in any discovery dispute. Plaintiffs who were designated as the Primary Next of Kin (“PNOK”) of Army service members who died in the Philippines during World War II, sought the return of the service member’s remains for burial from where the remains were interned as Unknowns in[…]
Read more
Litigants frequently battle over the production of search term hits, regardless of whether the “hits” are even relevant. This is absolutely the wrong beach to die on in a lawsuit. There is the brutal reality of the costs of motion practice for the client and judicial resources spent refereeing that[…]
Read more
Lawyers have to answer a very basic question in preparing a case for trial: How can we prove damages? In a patent case with a discovery dispute over lost-profit damages, the ultimate question was what damages were “adequate to compensate for the infringement” and how to prove them. Polaris Indus. v.[…]
Read more
Electronically Stored Information has progressed beyond email messages in lawsuits. In a multi-vehicle accident involving a UPS truck, the Plaintiff sought ESI including daily reports of the driver. These reports were listed in an interrogatory response and the Plaintiff claimed the Defendant had a duty to preserve them. Merriweather v.[…]
Read more
Identifying ESI that supports a party’s claims and is responsive to discovery requests comprises the detailed work of document review. Both workflows are extremely similar in that constructing searches are one way to find the relevant ESI. In a discrimination suit, the Defendants filed motions to compel the Plaintiff to[…]
Read more
Problems do not improve by not talking about them. In an employment discrimination case, the Defendants sought production of several exhibits from the Plaintiff. After stating she would produce them in a few days, the Defendants did not hear back from the Plaintiff despite both formal and informal requests. Mitchell[…]
Read more
Social media is just another form of electronically stored information. Attorneys are getting very good at making proportional requests for relevant social media in a lawsuit. Judges also know how to rein in overly broad social media requests for production. In a case with allegations that a tractor trailer negligently[…]
Read more
In an auto accident case, the Defendant insurance company sought discovery from a Plaintiff’s Facebook, Twitter, and Instagram accounts. The Plaintiff objected to all three account requests as “invasion of privacy and not relevant.” Ehrenberg v. State Farm Mut. Auto. Ins. Co., No. 16-17269, 2017 U.S. Dist. LEXIS 132036, at[…]
Read more