Knotty Issues of eDiscovery
In a case where the Court called the Defendants’ disclosures troubling, the Plaintiffs sought sanctions for the failure to back-up hard drives or issue a litigation hold. There was one big problem with the Plaintiffs’ argument: they did not prove that the Defendant had a duty to preserve the email when[…]
Read moreI want to thank all of my readers who have enjoyed my blog over the years. I hope you enjoy my 400th post on eDiscovery. I have seen amazing things in my 12 years as an attorney. I have traveled across all of North America; I have met amazing lawyers;[…]
Read moreDiapers. Perhaps the most effective tool for encouraging family planning. Now a messy diaper shipment case delivers a message on the importance of issuing a litigation hold. A Defendant brought a sanctions motion against a Plaintiff for their alleged failure to preserve evidence in a case over $3 million worth[…]
Read moreA Plaintiff brought a motion for terminating sanctions pursuant to Federal Rule of Civil Procedure 37(b), based on the Defendant’s untimely production of ESI as non-searchable TIFFs without metadata. The Court denied the default sanction, but instead ordered the production in searchable format with metadata. Kwan Software Eng’g, Inc. v. Foray[…]
Read morePuerto Rico once again has issued a thought provoking eDiscovery opinion. It’s about time we hold a conference there. The Court found the Plaintiff had offered sufficient evidence that the Defendant had a duty to preserve the personal email accounts of its former officers. The Court explained the email accounts[…]
Read moreWestdale Recap Props. v. Np/I&G Wakefield Commons is a serious case of “no, that’s not right.” It concludes with a Court telling a requesting party that requested ESI as native files that it had not “demonstrated an adequate need to have all the ESI produced in native format.” So much[…]
Read moreSome cases begin with such a “wow” introduction they have to be seen to be believed: To put it lightly, there has been a severe shortcoming by Defendants in this action during the discovery process. Not only have Defendants’ resisted providing required information in initial disclosures and resisted previous discovery[…]
Read moreA requesting party has a very difficult problem when a producing party has made a very small production that the requesting party believes is deficient. This situation quickly turns into the requesting party trying to prove a negative to the Court that a production is inadequate, without any evidence to[…]
Read moreThe best way to get requesting parties to take proportionality seriously is to award a prevailing party $71,611.52 for hosting eDiscovery for review and production. The taxation of eDiscovery costs pursuant to 28 U.S.C. 1920(3)-(4) warrants serious modification as we debate the proposed Amendments to the Federal Rules of Civil[…]
Read more…[T]here is an additional, more persuasive reason to limit Apple’s production — the court is required to limit discovery if “the burden or expense of the proposed discovery outweighs its likely benefit.” This is the essence of proportionality — an all-to-often ignored discovery principle. Magistrate Judge Paul Grewal Apple Inc.[…]
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