June 29, 2010
Citation: Newman v. Borders, Inc., 257 F.R.D. 1 (D.D.C. 2009).
Employee/Employer Implicated: Large Bookstore, Outside Counsel
e-Lesson Learned: Rule 30(b)(6) requests must specify whether electronically stored information retention policies will be within the scope of the deposition testimony sought.
Twitter This: Ask and they shall answer—a deposition notice should define the scope of testimony! --> http://ellblog.com/?p=2101
In Newman v. Borders, Inc., the United States District Court for the District of Columbia held that because plaintiff failed to notify defendant in a deposition notice that questions in a deposition would pertain to the defendant book’s email policies (or any electronically stored information (ESI) in general), plaintiff was not entitled to take further depositions despite the designated witness’s lack of knowledge regarding that subject matter. However, the Court further held that due to both parties’ failures to try hard enough to resolve the dispute and because discovery regarding document retention policies is a legitimate request, defendant was nonetheless ordered to answer specific questions posed by the Court regarding its email retention policies.
The lesson here is twofold: If you are going to depose witnesses regarding ESI, you must put the other party on notice of the scope of the deposition testimony being sought, or risk losing the opportunity to conduct further depositions. But regardless of whether you are the party who asks or the party who answers, you must be sure to make every reasonable effort to resolve discovery disputes. Continue reading »
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Tagged as: Accessibility, Cost Sharing & Shifting, Meet & Confer, Procedure
View more articles implicating: In-House Counsel, Outside Counsel
June 8, 2010
Citation: Wixon v. Wyndham Resort Dev. Corp., 2009 U.S. Dist. LEXIS 86337 (N.D. Cal. Sept. 21, 2009)
Employee/Employer Implicated: Outside Counsel, In-House Counsel, Document Custodians,
e-Lesson Learned: If your client is under an agreement to produce specific custodians’ documents by a specific deadline, make sure you know all physical locations each custodian might save documents, INCLUDING a shared file directory on a server. The court will not be impressed by your attempts to use, in support of your motions, documents produced late; and the excuse that you were unaware of a shared directory of a named custodian is no excuse for failing to produce responsive documents found on that directory.
Twitter This: Look in all nooks & crannies when agreeing to custodian-limited production of docs --> http://ellblog.com/?p=2098
It happens all the time. To expedite the litigation process, parties reach agreements as to the scope and timing of electronic discovery. After all, who wants to delay litigation with the lengthy and expensive review of a universe of documents when you can significantly shrink that universe without compromising the quality of your production by agreeing on a set of specific custodians?
The parties in Wixon v. Wyndham Resort Development Corp. reached an agreement that by a specific date, Wyndham would produce electronically stored information (“ESI”) held by specific custodians that matched specific search terms. But what happened when, after the deadline, Wyndham revealed a stash of ESI found in a shared directory of a hard drive not allocated to a specific custodian? Does a document not directly linked to a specific custodian automatically become “nonresponsive”? Continue reading »
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Tagged as: Discoverability, Meet & Confer, Production of Data, Sanctions, Waiver
View more articles implicating: Document Custodians, In-House Counsel, Outside Counsel
