Cooperation/Meet & Confer

Document review often is the most expensive component of discovery in large, complex cases. Wouldn’t it be great if you could shift that cost to the party that requested the documents, along with the burden of performing the tedious, time-consuming review? Well, maybe you can. A federal magistrate judge in the N.D. Florida recently did exactly that.

In FDIC v. Brudnicki, No. 5:12-cv-00398, 2013 WL 2948098 (June 14, 2013) , the FDIC, as receiver for a bank, sued eight of the bank’s former directors, including one officer. The defendants moved to compel documents from the FDIC and sought sanctions against the FDIC “for delaying discovery.” Id. at *3. The FDIC had “agreed to produce responsive documents under a proposed protocol.” Id. at *4. The court observed, however: “The parties sharply disagree on the method of production and the ESI protocol.” Id.
Continue Reading Shifting the Burden and Cost of Reviewing Voluminous ESI to Opposing Parties

Earlier this month, the U.S. District Court for the District of Kansas “substantially revised its ESI guidelines to address that particularly critical and rapidly evolving subject.” As part of an ongoing effort to adapt its local rules and guidelines to ensure “that civil litigation actually is handled in the ‘just, speedy, and inexpensive’ manner contemplated by Rule 1 of the Federal Rules of Civil Procedure,” the Court’s Bench-Bar Committee approved recommendations made by various working groups of its Rule 1 Task Force. That task force project included a working group dedicated to e-discovery, and the result is that the Court’s ESI Guidelines have been revamped to incorporate the growing volume of e-discovery case law and guidance published in recent years.

Now twelve pages instead of its original five, the revised Guidelines include various notable updates. For example, the Guidelines now address the use of technology-assisted review (TAR), they reference the Sedona Conference Cooperation Proclamation, and they instruct counsel about the availability of Federal Rule of Evidence 502(d) to protect against waivers of privilege. The new ESI Guidelines undoubtedly place the U.S. District Court for the District of Kansas as one of the leading federal courts in the area of civil litigation e-discovery.
Continue Reading Kansas Federal District Court Revamps ESI Guidelines To Address Developments in E-Discovery Case Law, TAR and Social Media Evidence

On Wednesday August 14, 2013, I will be participating in a free BNA webinar exploring the constitutional and practical dimensions of ESI in federal and state criminal actions. I will be speaking with an experienced group of panelists, including Hon. Craig B. Shaffer, United States Magistrate Judge, District of Colorado; Roy Altman, Assistant United States

Document dumps deliberately comprising significant numbers of non-responsive documents are of course never appropriate and have long been frowned upon by the courts. Neither is it appropriate to deliberately bury a smoking gun document in the middle of a heap of marginally responsive documents. Both tactics long predate ESI.

But the ever-increasing volume of ESI—now often measured in terabytes—exacerbates the problem these tactics exploit. Why?

Because lawyers more and more find themselves dealing with such large volumes of documents—millions or even tens of millions of pages—that they struggle to identify only the documents responsive to an adversary’s request in a cost-effective manner and to produce those documents in a reasonably organized fashion even when acting in good faith. Well-intentioned counsel can find themselves facing claims of hiding documents in a production or dumping nonresponsive documents on the other side merely because the sheer volume of documents collected, reviewed, and ultimately produced—coupled with erring on the side of over-inclusion—yields a haystack so large that even a bucket of needles would be hard to find.
Continue Reading Avoiding Sanctions in E-Discovery When Producing Voluminous ESI

In conjunction with the 2013 American Bar Association annual State of Criminal Justice, I have published a new article on “E-Discovery in Government Investigations and Criminal Litigation.” The article provides an in-depth look at many of the current and cutting edge issues raised by e-discovery in this context, including the search and seizure

Ever since Magistrate Judge Peck’s decision last year in Da Silva Moore v. Publicis Groupe SA, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012), there has been an increasing stream of orders and opinions weighing in on the use (or proposed use) of predictive coding. With each opinion, a new wrinkle appears, further shaping how parties are conducting technology assisted review during discovery.

Last month, Judge Robert Miller Jr., of the United States District Court for the Northern District of Indiana, joined this group with his order in In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391). There he found reasonable the process that had been undertaken by defendant Biomet in a multi-district litigation, involving the use of keyword searches followed by predictive coding, despite complaints from the plaintiffs’ Steering Committee.
Continue Reading Indiana Federal Judge Declines to Order Defendants to Re-Do Discovery Based on Keyword Searches Followed by Predictive Coding

Back in February, I spoke at the at the Richmond Journal of Law and Technology’s annual symposium, titled “E-Discovery: A New Frontier.” During my presentation, I discussed many of the new and cutting edge issues facing practitioners in government investigations and criminal litigation, including pre-indictment practice, various constitutional issues, privacy, and various issues

In conjunction with the Richmond Journal or Law and Technology’s annual survey, Adrian Fontecilla and I have published a new article: Social Media Evidence in Government Investigations and Criminal Proceedings. The article provides an in-depth look at many of the cutting edge issues raised by social media in government investigations and the criminal context,

I remember when “apps” meant chips and salsa or maybe some buffalo wings and fried mozzarella sticks before dinner.  “Apps” used to clutter my table.  Now they clutter my tablet—largely thanks to my kids, who are as proficient with the thing as I am. 

According to Apple, there is an app for just about anything.  But not all apps are created equal.  In fact, according to one federal judge, “some Apps are fatally flawed and should be recalled.” 

Just last week, in Howard v. Segway, Inc., 2013 WL 869955 (N. D. Okl. March 7, 2013), U.S. Magistrate Judge Paul Cleary sanctioned Segway for discovery misconduct, awarding the plaintiffs fees and costs associated with a motion to compel.  Judge Cleary concluded that—although the plaintiffs’ discovery requests were far from perfect—Segway’s discovery responses and corresponding document productions ran afoul of its duties under the Federal Rules.
Continue Reading Discovery Misconduct and Sanctions: There’s No App for That!

Last week, I was one of the featured speakers at the Richmond Journal of Law and Technology’s annual symposium, titled “E-Discovery: A New Frontier.” I discussed many of the new and cutting edge issues facing practitioners in government investigations and criminal litigation, including pre-indictment practice, various constitutional issues, privacy, and various issues relating to social media.

Michael Yager, Director of e-discovery at Spotts Fain, presented on “E-discovery as Quantum Law.” Michael discussed how developments in e-discovery law have been no less shattering to practitioners in the “classic” practice of law than the introduction of quantum theory to physics. He described the clash of cultures within the practice of e-discovery, and also argued that the introduction of ESI has created a noticeable shift in jurisprudence related to e-discovery, causing a “cultural explosion” within a segment of the legal profession not seen in any other profession since the development of Quantum physics approximately a century ago.
Continue Reading Reflections on the Richmond Journal of Law and Technology’s Annual Survey and Symposium