March 30, 2010
Citation: Heriot v. Byrne, 2009 WL 742769 (N.D. Ill., March 20, 2009) T.A. Ahern Contrs. Corp. v. Dormitory Auth. of State of New York, 2009 NY Slip Op 29125, 1 (N.Y. Sup. Ct. 2009)
e-Lesson Learned: An independently run eDiscovery project performed by qualified and competent vendors can be useful when there’s “loads” of documents to sift through. However, be careful because their mistakes become YOUR mistakes and may result in costing YOU.
Suppose you’ve got a business. Not just any business, however, but a state-of-the-art business. Not necessarily a business that sells state-of-the-art products or services, but a business that you run in a state-of-the-art manner. Instead of carrying briefcases full of notes, you’ve got compact flash cards full of data. You don’t even remember the cost of a first-class stamp because all of your correspondence is done by email. You don’t have boxes and drawers full of hard files around the office because you’ve got everything stored and backed-up on hard drives and servers. You don’t have a calendar on your desk because you’ve got your daily schedule synched to the Smartphone that never leaves your side. You use every possible gadget to make sure that you are doing everything in the most technologically advanced and efficient way possible.
Now, think to yourself: What happens one day when your company winds up on the wrong end of a lawsuit? Perhaps even a completely bogus, frivolous lawsuit. Even if you know that you’ll end up victorious in the end, you might find yourself bogged down in an eDiscovery quagmire once you have to turn over all of your “documents” during discovery. Continue reading »
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Tagged as: Computer Forensics Protocols, Consent, Cost Sharing & Shifting, Experts, Metadata, Production of Data
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September 12, 2009
Citation: Arista Records, LLC v. Usenet.com Inc., 2009 U.S. Dist. LEXIS 5185 (S.D.N.Y. Jan 26, 2009)
e-Lesson Learned: An expert’s statements are inadmissible as expert testimony if they simply repeat the statements of the client who retained the expert without any independent investigation or analysis.
When last we left our wily defendants, Gary Reynolds and Usenet.com had just been sanctioned for spoliation of evidence requested by the plaintiffs on numerous occasions. As an explanation for their failure to produce the evidence, Gary Reynolds had argued, in part, that relevant data had “expired off the system through normal system operational attrition.” That is, according to Reynolds, the destruction of data pertinent to their case was not a willful attempt to prevent the plaintiffs from obtaining the data. It was nothing more than the inevitable consequence of the limited storage space on his company’s computers. Continue reading »
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Tagged as: Admissibility, Experts
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April 21, 2009
Citation: Shira A. Scheindlin, Special Masters And E-Discovery: The Intersection Of Two Recent Revisions To The Federal Rules Of Civil Procedure, 30 CARDOZO L. REV. 347 (2008)
Employee/Employer Implicated: In-House Counsel, Independent Contractor & Experts, Miscellaneous, Outside Counsel, Owner & Executive, Upper Management
e-Lesson Learned: Appointments of Special Masters to manage discovery in cases involving a substantial amount of electronically stored information (ESI) may become more the rule than the exception. As The Honorable Shira A. Scheindlin (of Zubulake v. UBS Warburg fame) and Jonathan M. Redgrave observe, the recent revisions to the discovery rules may facilitate such appointments, which would consequently increase judicial efficiency in cases with substantial electronic records.
In a recent law review article, The Honorable Shira A. Scheindlin, U.S.D.J. (Southern District of New York) and Jonathan M. Redgrave address the recent revisions to Rule 53 and discovery rules, and articulate appropriate uses of special masters in the growing world of e-discovery. They predict eDiscovery Special Masters to be the next big thing in e-discovery.
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Tagged as: Computer Forensics Protocols, Experts, Meet & Confer, Metadata, Procedure, Production of Data
View more articles implicating: Experts/Independent Contractors, In-House Counsel, Miscellaneous, Outside Counsel, Owners/Executives, Upper Management
February 7, 2009
Citation: Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645 (D. Minn 2002)
Employee/Employer Implicated: Owner, experts
e-Lesson Learned: Request for data must be narrowly tailored. Court can devise a plan to have third party collect data and have Court review data before it is turned over to adversary. Court can use equitable principles to start discovery process even before mandatory conference as prescribed by the Federal Rules of Civil Procedure 26(f).
In an action for copyright infringement and unfair competition, under both Federal and State law, Antioch claimed that Scrapbook was selling copyrighted products. Antioch claimed that without permission, Scrapbook sold decorative sticker designs owned by a division of Antioch called Creative Marketing.
Antioch asked the Court to start discovery early because it believed that Scrapbook was destroying incriminating documents. Before the Court reached the Plaintiff’s motions, it denied the Defendant’s motion to stop the litigation because of the Soldiers’ and Sailors’ Civil Relief Act of 1940. The Court found that although one of the defendant’s was in active service, he was deployed in the United States, and served only 2 out of every 4 weeks.
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Tagged as: Experts, Production of Data
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January 23, 2009
Citation: Qualcomm, Inc. v. Broadcom Corp., No. 05-CV-1958-B, 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)
Employee/Employer Implicated: Everyone, from management to individual employees to in-house counsel to independent contractors
e-Lesson Learned: During discovery, make sure you and your employees give attorneys complete access to company email records, guiding them towards the accounts of relevant employees and offering helpful search terms that relate to the matter at hand.
Let’s say you download an e-book of Aesop’s Fables to look for the story “The Milkmaid and Her Pail.” You think of search terms and come up with: milkmaid, pail, count, chickens, hatched. Then what? If you want to find the story, you do the search. However, if you’re pretty sure the story is there but you don’t really want to find it, you might search other terms. Well, as Qualcomm found out, the second option doesn’t work so well when it comes to discovery.
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Tagged as: Accessibility, Computer Forensics Protocols, Discoverability, Good Faith, Production of Data
View more articles implicating: Employees, Experts/Independent Contractors, Owners/Executives, Upper Management
