Discovery Resources

The money quote: “BNSF, through its spokesperson, Suann Lundsberg, told Minnesota Lawyer that there was an issue six years ago regarding evidence preservation and acknowledged that BNSF could have done a more thorough job of documenting that the gates and lights were properly activated.”

This fascinating story, from Minnesota Lawyer, of sanctions and fully complying with discovery is a good read. Continue reading….

By Fernando M. Pinguelo and Andrew K. Taylor

Earlier we reported that a New Jersey state trial court found that a former employee waived the attorney-client privilege when she decided to use company time, equipment, and resources to communicate with her lawyer. Recently, an appellate court reversed that ruling and framed the issue as “whether workplace regulations converted an employee’s emails with her attorney ” sent through the employee’s personal, password-protected, web-based email account, but via her employer’s computer “into the employer’s property.”

Plaintiff had argued that the company failed to demonstrate that it had ever adopted or distributed the policy in question, that she was unaware that thecontinue…

This just in, from InformationWeek Global CIO: “An appeals court rejected Ron Perelman’s request for a new trial in a case that saw the cosmetics tycoon win a $1.5 billion judgment against Morgan Stanley, only to see the award overturned on appeal. Much of the original case centered on Morgan Stanley’s failure to produce e-mails that Perelman wanted entered as evidence.” Continue reading….

Legal Holds & Trigger Events, is a blog dedicated to cases, insights, developments and best practices relating to the development and implementation of legal holds relating to audit, investigation and litigation in the United States; and trigger events that give rise to the duty to preserve evidence in the United States.

Today they review a report of In Shukla v. Sharma (EDNY Aug. 21, 2009),in which a Hindu Priest, claimed that the Ashram he lived and worked for in New York illegally trafficked him into the US in 2000 and enslaved him.

The primary discussion of the Report is a summary judgment motion by defendants, but a spoliation motion alsocontinue…

California Lawyer this month has a interesting article by Perry L. Segal, an IT executive turned e-discovery attorney and consultant. “Remember the old adage “An ounce of prevention is worth a pound of cure”? In the e-discovery universe, you’ll need several pounds. The California Electronic Discovery Act has been in place for about three months, and I’ve been fielding a lot of inquiries. The number one question is: “How much is all this going to cost?”

Answer: How much do you have?”

Continue reading…

Contrary to popular belief, the new California rules for ediscovery do not mandate a protective order when dealing with not reasonably accessible data.  The rules are similar to the Federal Rules of Civil Procedure in that the not reasonably accessible data needs to be identified, and then the burden shifts to the other side to press further.  The earlier draft, vetoed by the governor last year, did not have this provision.  This change will save California businesses millions in motion fees and courts substantial time in hearing them.

Some practitioners with experience crafted the provision.  Categories and sources can be identified, removing the potential requirement of indexing tapes to determinecontinue…

The Federal Rules of Civil Procedure are changing December 1, 2009.  Heads up to ediscovery teams to readjust calendars.  The changes give extra time and take time away.

The most significant changes are to Rule 6. Currently under Rule 6, intermediate weekends and holidays for some short time periods are excluded when counting deadlines…

The new Rule 6 adopts the “days-are-days” approach. When calculating a deadline, every day is counted, including intermediate weekends and holidays, for all time periods.

Docketing professionals will be quite busy figuring out the gift of time.

Other drastic changes to the FRCP are the new time periods in Rules 6, 12, 14, 15, 23, 27,

continue…

As of September 2009, twenty-three states have adopted statewide ediscovery procedural rules which mirror or reflect the 2006 E-Discovery Amendments to the Federal Rules of Civil Procedure (2006 Amendments). In addition, several states have adopted, typically as a separate measure, an analog to the Federal Evidence Rule 502 dealing with waiver of the attorney-client privilege or work product protection.

Mr. Allman analyzes the continuing evolution of ediscovery at the state level here.

Tip of the hat to David Bowerman and the fine bloggers at K&L Gates…..

An especially interesting ruling, especially for fraud cases…”I think the best way to understand today’s remarkable Ninth Circuit Fourth Amendment decision in United States v. Comprehensive Drug Testing is that the Ninth Circuit did its best to end the plain view exception for computer searches without formally ending plain view for computer searches.”  Continue reading….

Oliver Marks, over at ZDNet Collaboration 2.0, begins his recent post by stating that ediscovery and compliance are complicating the goal of enterprise collaboration. His article includes this gem: “CIO stands for ‘Career Is Over’ in some C suite circles because it’s so easy to be left holding the baby when some unforeseen legal consequence of compliance or legal action means finding someone to blame.” Continue reading..