Supplemental Disclosures

Lessons in Mandatory Preclusion for Failure to Disclose ESI

July 16, 2018 Josh Gilliland Initial Disclosures, Supplemental Disclosures

In a case on an unsecured creditor seeking notarial fees and expenses from a failed bank with dueling summary judgment motions, the FDIC argued the Plaintiff did not prove the exact amount they were owed. Biaggi & Biaggi, P.S.C. v. FDIC, 2018 U.S. Dist. LEXIS 63841, at *1-3 (D.P.R. Apr.[…]

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[…]

Hard to Decide Discovery Disputes on Proportionality if No One Knows the Value of the Case

April 15, 2015 Josh Gilliland Initial Disclosures, Proportionality, Supplemental Disclosures

Magistrate Judge Paul Grewal ordered the supplemental production of damages information in a patent case based on proportionality and supplemental disclosures. Corning Optical Communs. Wireless v. Solid, Inc., 2015 U.S. Dist. LEXIS 49069, 5-8 (N.D. Cal. April 14, 2015). This is a unique argument that makes a lot of sense:[…]

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[…]

Exotic Apples: Solutions in Collecting & Processing Apple ESI

August 15, 2011 Josh Gilliland Discovery, e-Discovery, Electronically Stored Information, ESI, Initial Disclosures, Reasonably Accessible, Reasonably Useable Form, Request for Production, Supplemental Disclosures

My friend Charlie Kaupp at Digital Strata brought the following issue to me: There is an increasingly prevalent amount of Apple ESI found in corporate environments, especially among executives, engineering, and marketing groups. Most review platforms do not handle large portions of Apple ESI, including: Mac email (Entourage, Outlook 2011,[…]

A Judicial Love Bite: Initial Disclosures Mean Initial Disclosures

June 23, 2010 Josh Gilliland Civil Procedure, e-Discovery, Electronically Stored Information, Email, ESI, Initial Disclosures, Supplemental Disclosures

Every now and then, rules with teeth will leave a love bite. This is one of those cases. The Plaintiffs identified 31 documents in their initial disclosures. However, none of these were produced because of a claimed computer crash. Pinkney v. Am. Med. Response, Inc., 2010 U.S. Dist. LEXIS 56465,[…]

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.[…]

Disturbo se if I Don’t Produce Discovery?

September 11, 2009 Josh Gilliland Discovery, Initial Disclosures, Supplemental Disclosures

In Gotlin v. Lederman, 2009 U.S. Dist. LEXIS 78818 (E.D.N.Y. Sept. 1, 2009), the Plaintiff was precluded from using Italian medical records because of a failure to include the records in their initial disclosures. In the words of the Court, the Plaintiff’s attorney “provided virtually no discovery during the[…]

Turning Rule 26(a) Initial Disclosures into Rule 26(e) Supplemental Disclosures

July 31, 2009 Josh Gilliland Discovery, Initial Disclosures, Request for Production, Supplemental Disclosures

What happens if more responsive documents are found after the case management order setting a required disclosure deadline? Answer: You must supplement your disclosure. In Kutrip v. City of St. Louis, 2009 U.S. Dist. LEXIS 60199 (E.D. Mo. June 30, 2009), the deadline for discovery was November 30, 2006 and[…]