Discovery Resources

12/9 - Be sure to register for this webcast featuring an outstanding panel of e-discovery experts discussing what’s wrong (and right) with the current e-discovery rules and system.  Moderated by Mary Mack, the panel members include:

• Richard Braman, Executive Director of the Sedona Conference
• Craig Merritt, Christian & Barton LLP & former member of The American College of Trial Lawyers Task Force on Discovery
• Bruce Parker, Partner, Venable LLP - Lawyers for Civil Justice

More information / register >

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 the policy applied to continue…

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 also considered by continue…

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, 32, 38, 50, 52, 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…..

Arlen Specter (D-Pa) has proposed a return to prior pleading standards for civil lawsuits. This certainly could make for an interesting discussion on liberal pleading standards v. reasonable notice to defendant and excessive preservation requirements. Continue reading….

Not every judge has the experiences of Magistrate Judges Facciola, Waxse, Grimm or Peck when it comes to electronically stored information.  Some District Court judges are just now issuing their first ESI opinions, over 2.5 years since the December 2006 Amendments. And for those who have not followed the news, California state judges will now be facing these issues since California enacted its own Civil Discovery Act addressing e-Discovery. Continue reading….

Tip of the hat to Bowtie Law Blogger Joshua Gilliland, Esq.

Industry thought leader Joshua Gilliland reviews this recent case where a criminal defendant was appealing his conviction on ineffective counsel and insufficient evidence to support his convictions challenged text message evidence. Continue reading…

by Aaron Cronan, Esq.,
Fios, Inc.

If you haven’t read the Bray & Gillespie v. Lexington case yet, you’re missing out on another example of the minefield e-discovery has created for litigators. In short, when a party asks for native files with intact metadata, stripped TIFFs are not an acceptable format. More important is the lesson not to make assumptions about how the data was collected and processed. Don’t tell the court or your opponent documents were printed and scanned unless you are certain that is the case. In the words of Judge Spaulding:

Berringer falsely told opposing counsel that B & G had caused all of its ESI to be printed and continue…