• cakepops


    Two Basics: Don’t Accept Candy From Strangers and Avoid Falling Into the “Document Dump[s]”

    A recent order issued by M.J. Paul Grewal in Venture Corp. Ltd., et al. v. Barrett, No. 5:13-cv-03384, 2014 WL 5305575 (N.D. Cal. October 16, 2014) provides a useful reminder for all litigators: “Rule 34 (Producing Documents, Electronically Stored Information, and Tangible Things) is about as basic to any civil case as it gets. And yet, over and over again, the undersigned is confronted with misapprehension of its standards and elements by even experienced counsel. Unfortunately, this case presents yet another example.”

    / Nov 10, 2014 at 12:27 PM
  • Technology today's tech


    “Reasonable Inquiry”: Complying With Rule 26(g) In The Age Of Technology

    There can be little debate that electronically stored information (“ESI”) has altered the landscape of discovery in civil litigation. The number of devices that transmit or store electronic data as well as the volume of data in existence have increased exponentially in recent years. The rules and underlying principles governing discovery in civil litigation, however, remain largely unchanged. In light of the voluminous available data and the myriad of methods for storing and accessing such data, attorneys should examine their normal practice of gathering information responsive to discovery requests and subject to disclosure, especially when ESI is involved, so they do not fun afoul of their obligations under Rule 26(g).

    / Oct 31, 2014 at 11:11 AM
  • R and D signpost


    E-discovery Is Hard

    Catchy blog titles are usually hard too, but not this one. Discovery of electronically stored information (“ESI”) is just plain difficult. If you are lucky, it does not come up in your case at all. Or, the parties agree that only certain emails during a certain period of time are relevant to the dispute. If you are unlucky, you might find yourself in the middle of a massive theft of trade secrets case involving customer lists with thousands of names and an email address for each one of them. At that point, expect to spend several months creating an ESI discovery protocol with your opposing counsel – a process of negotiating everything from search terms to custodian/device lists to hard drive/server copying formats, and so on and so forth. Once that part is finished, you still have to engage in discovery according to the protocol.

    / Oct 28, 2014 at 2:55 PM
  • Key to success

    Small Law Firms, Solo Practitioners, Technology

    How I Managed To Succeed As A Solo Practitioner

    Entitled lawyers, stop your whining; nobody owes you anything.

    42 Comments / / Oct 28, 2014 at 2:17 PM
  • Attractive businesswoman holds magnifying glass, isolated


    Are Attorney-Expert Communications Discoverable in Pennsylvania? (Almost never) — Some Clarity from the Appellate Courts

    In Pennsylvania, testifying experts usually are not deposed before trial; typically, their written reports are provided in advance of trial and delineate the substance and scope of their testimony. Attorneys often wish to communicate with their client’s expert and comment on drafts of the reports. Until April 2014, the law was not clear whether these communications were discoverable. This uncertainty made it problematic and potentially perilous for a party’s attorney to communicate with the party’s testifying expert, particularly in advance of the disclosure of the expert’s report. In Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, No. 2014 WL 1688447 (Pa. Apr. 29, 2014), the Justices of the Supreme Court of Pennsylvania took up the issue of the discovery of attorney-expert communications and split 3-3. This left intact the Superior Court’s bright-line rule preventing discovery of attorney-expert communications—a rule now to be applied by Pennsylvania trial courts.

    / Oct 22, 2014 at 1:09 PM
  • ediscovery

    eDiscovery, Technology

    Refuse to Provide Electronically Stored Information in Response to a Subpoena? You Could Face Sanctions

    The California Court of Appeal recently provided rare guidance regarding a third party’s obligations to produce electronically stored information (ESI) in response to a subpoena. In Vasquez v. California School of Culinary Arts, Inc. (Sallie Mae) (August 27, 2014, B250600) Cal.App.4th (2014 WL 4793703), the court defined subpoenaed parties’ obligations to extract existing data from computer systems and upheld an award of attorneys’ fees against the recalcitrant third party. The court concluded that it is unreasonable for a third party to withhold ESI that exists in its computer systems on the basis that outputting the ESI entails creating a “new” spreadsheet.

    / Oct 21, 2014 at 3:35 PM
  • Gavel


    Tread Lightly: eDiscovery Greed May Leave You With None At All

    On July 14, 2014, the Court in United States v. University of Nebraska at Kearny (No. 4:11CV3209) took a significant step in support of Federal Rules 1 and 26. Magistrate Judge Cheryl R. Zwart denied plaintiff’s motion to compel defendants to use plaintiffs’ proposed search terms to cull electronically stored information (ESI) for review and production. The Court’s order effectively discharged defendants’ obligation to produce any ESI. And the Court issued this order notwithstanding both that 1) the parties had agreed to a stipulation summarizing protocol for the production of ESI shortly after the outset of the case, and 2) plaintiff previously produced ESI as part of its production to defendants’ discovery requests. In short, plaintiffs’ unwillingness to fairly compromise as to the breadth of search terms aimed at reasonably limiting the scope of ESI production came back to bite.

    / Oct 16, 2014 at 11:53 AM
  • natives

    eDiscovery, Technology

    The Natives Are Unimpressed

    I miss the old days I’d scare natives with eclipse! Now? [Shrug] check Twitter The bad news: we took away the “easy” button in eDiscovery. The good news: see “the bad news” Having reviewed a bit of the story of eDiscovery, it may be time to reveal another insider secret: eDiscovery used to be easy. […]

    1 Comment / / Oct 7, 2014 at 2:27 PM
  • Logo_Google_2013_Official.svg

    Google / Search Engines, Technology

    Privacy Policy Challenge: Google Ordered to Cease Data Profiling in Germany

    Ed note: This post originally appeared on Peter S. Vogel’s Internet, Information Technology & e-Discovery Blog. A recent administrative order was issued for Google to “to take the necessary technical and organisational measures to guarantee that their users can decide on their own if and to what extend their data is used for profiling.” Last […]

    / Oct 6, 2014 at 4:59 PM
  • Gavel


    Legal Alert: The Tax Court Approves the Use of Predictive Coding

    On September 17, the U.S. Tax Court, in Dynamo Holdings LP v. Commissioner, 143 T.C. No. 9 (Sept. 17, 2014), held that a taxpayer could use predictive coding, over the objection of the Internal Revenue Service (IRS), to identify relevant electronically stored information (ESI) for production. This is the first Tax Court case to address the use of predictive coding in response to a discovery request.

    / Oct 2, 2014 at 1:42 PM
  • facebook RF

    Facebook, Technology

    Two Courts Permit Defendants To Be Served on Facebook

    Ed note: This post originally appeared on Peter S. Vogel’s Internet, Information Technology & e-Discovery Blog. When the defendants could not otherwise be located and served by paper, face-to-face, two Judges ordered service on Facebook since the defendants were in Turkey and Antigua. Since Turkey “has not specifically objected to service by email or social […]

    / Sep 29, 2014 at 2:45 PM
  • anonymous lawyer RF

    Cyberlaw, Technology

    John Doe Can Remain Anonymous and Not Be Deposed in Pre-Litigation Discovery

    Since the plaintiff did not a file a lawsuit against John Doe, the Texas trial court had no jurisdiction to allow the plaintiff to take the deposition of “Trooper,” an anonymous blogger who launched on on-line attack on the CEO of a company who lives in Houston.

    / Sep 25, 2014 at 10:52 AM
  • tech folder

    Document Review, Technology

    An Illustrated Guide On How To Avoid Drafting Horrible ESI Discovery

    Bad discovery is how baby benchslaps are made.

    7 Comments / / Sep 16, 2014 at 11:17 AM
  • Thinking

    Contract Attorneys, Document Review, Law Schools

    Law School Gives Up On Actually Trying To Get Grads A Real Job

    There is going to be a doc review shop at a law school. And apparently the law school is okay with that, even excited.

    19 Comments / / Sep 12, 2014 at 11:03 AM
  • Technology

    “BYOD Bill of Rights” May Help Concerns about Privacy

    Ed note: This post originally appeared on Peter S. Vogel’s Internet, Information Technology & e-Discovery Blog. A recent survey about BYOD (“Bring Your Own Device”) resulted in the finding that “78% of employees use their own mobile devices for work” and “the use of personal technology to access corporate data can be solved by better […]

    / Sep 4, 2014 at 5:00 PM
  • iStock_000003253995Small-RF

    Contract Attorneys, Document Review

    Why The New Normal For Document Review Spells Disaster

    What job is so bad it has me questioning my very faith in humanity?

    15 Comments / / Aug 27, 2014 at 10:07 AM
  • I hate computers!

    California, Document Review, Legal Ethics, Technology

    Is It Ethical To Not Understand How E-Discovery Works? CA State Bar Does Not Think So

    “Woe unto you who fails to understand the importance of metadata.”

    8 Comments / / Aug 26, 2014 at 10:28 AM
  • Apple logo LF 2


    Court Grants Search Warrant to Entire Apple eMail Account for [REDACTED]@mac.com

    Ed note: This post originally appeared on Peter S. Vogel’s Internet, Information Technology & e-Discovery Blog. A Judge ruled it was unreasonable to ask Apple “to execute a search warrant” which “could pose problems, as non-government employees, untrained in the details of criminal investigation, likely lack the requisite skills and expertise to determine whether a […]

    / Aug 18, 2014 at 10:49 AM