Knotty Issues of eDiscovery
Parties in litigation often want to charge every windmill. The desire to fight every battle, or propound requests, conduct review, or issue deposition notices, can result in high costs with little results. Proportionality is one tool judges have to keep parties from destructive discovery conduct. In a contentious eDiscovery case,[…]
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In a case over text messages that allegedly violated of the Telephone Consumer Protection Act of 1991 (the “TCPA”), the Defendant sought the forensic examination of the Plaintiff’s cell phone because she deleted the text messages. Ramos v. Hopele of Fort Lauderdale, Ltd. Liab. Co., 2018 U.S. Dist. LEXIS 44327,[…]
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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[…]
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Proportionality analysis can yield surprising results. In a case involving the alleged breach of a patent license agreement over test cups used to screen urine for illegal drugs, the plaintiff sought email from two custodians knowledgeable of the Defendant’s marketing/sales and design/use of test cups. Rembrandt Diagnostics, LP v. Innovacon,[…]
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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[…]
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Social media is just another form of electronically stored information. Requests for social media in discovery have dramatically improved since the days of lawyers requesting entire Facebook profiles or Twitter accounts. Case in point, here is a defendant’s request for social media from a recent personal injury case: Produce all[…]
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Parties objecting to requests for production cannot simply state the words not “relevant or proportional to the needs of the case,” in the hopes a Judge will sing along like its Purple Rain. Proportionality has to be proven with facts, and lawyers who fail to do so will know what[…]
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There is good news on the new Amendments to the Federal Rules of Civil Procedure: Magistrate Judges are applying proportionality analysis like it is a shiny new toy. Magistrate Judge Tom Baker in Indiana weighed in on expedited discovery in advance of a preliminary injunction hearing. Southeast Fin. Credit Union[…]
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Magistrate Judge Howard Lloyd engaged in very granular analysis of discovery requests for email messages in a wage and hour case. This type or analysis is a mainstay in many motions over discovery requests, but likely will be more common as Federal Courts conduct proportionality analysis. The Court first summarized[…]
Read moreThe new Federal Rules of Civil Procedure are not as exciting as Star Wars The Force Awakens, but there differently has been an awakening on proportionality. There are those who fear eDiscovery, thus feel the new Rule 26 empowers them to object to every request for production on the grounds[…]
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