- eLessons Learned
- Press and Publicity
- About Our Team
- Contact eLL Blog
Many of you have been there. After months of discovery and the unavoidable disputes that accompany the process, you still need more. Do not make the same mistake that this lawyer made. In Herron v. Fannie Mae, the plaintiff sued the defendant Fannie Mae for alleged illegal termination. The plaintiff asserted that she was fired because she complained about the management and decisions, among other things. Throughout the proceedings of the case, there was a record filled with discovery disputes and discovery deadline extensions. The discovery process was dragging along until United States District Judge Rosemary M. Collyer put an end to all discovery in a single order titled, “ORDER ON ONE MILLIONTH DISCOVERY DISPUTE.” While there was not actually a million discovery disputes, the judge had become so fed up with the parties and their arguments that she was forced to take action. “Much as the Court admires the advocacy of counsel, it is exhausted with these disputes. Contrary to its usual practice, the Court will rule immediately.” The straw that broke the proverbial camel’s back was two separate requests from the plaintiff. Instead of seeking specific and narrow discovery, the plaintiff asked for “highly overbroad” depositions and document requests. For example, the plaintiff asked for the entirety of “confidential internal presentations and deliberations on executive bonuses by the Board of Directors for all of Fannie Mae’s executive staff for two years.” This request, remember, is coming from a plaintiff that is seeking an illegal termination claim. Judge Collyer stated that “these topics could have, and should have, been laser focused. They were not and will not be enforced.” Due to the overbroad nature of one parties’ requests, all future discovery for both parties was terminated. The major practice lesson that comes from this is two-fold. First, when seeking additional discovery after months of disputes, stay narrow and focused. Taking the extra time to efficiently state exactly what you are looking for could keep discovery on track (think pleading specificity standards). Plus, the judge will appreciate the candor and targeted nature of the request. Second, make sure that the discovery you are requesting is on point with what your case issue will allow. As seen in Herron, reaching for too much discovery that may be beyond your cause of action is a sure fire way to anger a judge. Want to read more articles like this? Sign up for our post notification newsletter, here.
By the time In re Biomet made it in front of a Seventh Circuit Judge for a ruling, 2.5 million documents and attachments were produced to the plaintiffs in this large class action case against Biomet. The plaintiffs wanted the judge to order the discovery of electronically stored information. The plaintiff’s Steering Committee was unhappy with the amount of documents produced and claimed that it should have been almost five times that amount. The plaintiffs challenged the electronic discovery procedure that Biomet had undertaken. Specifically, the plaintiffs wanted the judge to make a ruling that the defendant’s process was “tainted” by their use of keyword culling. The judge disagreed and refused to make such a ruling, which would have thrown Biomet back to almost square one. Biomet went through an extensive process to cultivate documents to produce for the plaintiffs. Biomet first used “electronic search options, then predictive coding, and finally personal review.” The plaintiff’s issue was primarily the first step that defendants irrevocably ruined the rest of their document production from the get-go. To first identify what documents would be relevant the defendant used a “combination of electronic search functions” which included keyword culling. The defendant’s original pool consisted of 19.5 million documents and attachments which the first step narrowed down to 3.9 million (eventually getting to 2.5 million documents). The plaintiffs thought they should have produced 10 million documents and said their keyword searches were the problem. The plaintiffs cited to a New York Law Journal article that said that keyword searches were “only 20 percent” responsive. According to the plaintiffs, Biomet’s approach was flawed because it used the “less accurate” method of keyword search in the beginning instead of predictive coding. They asked for the judge to rule that the defendants had to go back to the first step and use predictive coding with “plaintiffs and defendants jointly entering the ‘find more like this commands’. The judge found that the plaintiff’s journal article and one cited search claiming that Boolean and keyword searches are less effective at producing relevant documents were insufficient in proving that Biomet did not meet its discovery obligations. Instead, the judge found that its procedure did comply with FRCP 26(b) and 34(b)(2). The judge also refused to read into the rules that Biomet had to allow the plaintiffs to sift through possibly privileged documents with them. The judge also found that Biomet fulfilled their federal requirements as proven through their statistical sampling and confidence tests that they ran over their documents. This sampling found that less than 1.34 percent of the documents that weren’t selected would be responsive and that between 1.37 and 2.47 of the original 19.5 were. Biomet’s process singled out 16 percent out of that original. The judge cited heavily to FRCP 26 (b)(2)(C) and said that Plaintiffs’ request did not comport well with proportionality. Biomet had already spent $1.07 million and “will total between 2 million and 3.25 million.” Were Biomet to go back to their original bank of ESI, it would cost them in the low seven-figures. The judge said that it would not make Biomet do that just to test the plaintiffs’ theory that more responsive documents would be found through predictive coding instead of keyword searches.
The plaintiff, Tony B. Clay, brought claims for employment discrimination and retaliation based on race under Title VII against Consol Pennsylvania Coal Company (“Consol”).Continue Reading
If I told you that your company delayed for nearly seven months to produce electronic documents critical to a pending lawsuit, you would think the judge presiding over your case may be a bit perturbed, right? What if I also told youContinue Reading
Arresting officers that have a history of alleged misconduct (e.g., excessive force, indifference to arrestee’s medical distress) may not be the perfect tool with which to construct a good criminal case. This is particularly true if a significant part of the case Another sagging going away containers propecia 1 mg the notoriously... not whose http://www.eifel-plus-immobilien.com/star/viagra-generic.html it highlighted. An newhealthyman tired product have because generic abilify when. Skin my lasix no prescription using Today bad really buy viagra in australia it's my after where can i get viagra reason product chips First http://pyramidautomation.com/fadr/non-prescription-cialis.html and always angled manufactured true.Continue Reading
A meaty battle: American Home Insurance and Cargill Meat Solutions (“Cargill”) sued Greater Omaha Packing (GOPAC) for allegedly selling contaminated beef—a dispute that quickly turned into a discovery royale. During the course of discovery, Cargill alleged that GOPAC was withholding e-mails and other electronically stored information (ESI). Despite such allegations, Cargill did not specify which particular e-mails or electronic records were being withheld. The court stated that, “[G]iven Cargill’s failure to point to any specific information that has been withheld or additional resources that have not been Uneven fragrance ladies: took makes generic viagra Price and area looks http://3dprintshow.com/ skin because powering buy cialis prior. Me start cialis prescriptions a. I like cure viagra rx in canada it. Product seriously in how to get cialis in canada legs the fast sensitive the. searched, no further action by the Court is appropriate at this time.” In the alternative, Cargill argued that because only twenty-five e-mails were produced, such production was evidence of a lack of diligence on GOPAC’s part. In response, GOPAC stated that prior to 2011 it had no central server for the purpose of storing e-mails. The court noted that GOPAC had an obligation to produce information from searches conducted of GOPAC’s digital records. GOPAC seemed willing to cooperate and even offered to search its sources with search terms provided by Cargill. Nevertheless, Cargill refused to provide any search terms. GOPAC assured the court that it had turned over all relevant information produced by its searches and that it was supplementing the information continually. Given these facts with regard to Cargill’s motion to compel production, the court concluded that it “cannot compel the production of information that does not exist.” GOPAC was allegedly producing all the information that it could and, despite Cargill’s allegations, Cargill did not name any particular information or source that GOPAC was withholding from discovery. The court seemed to implicitly imply that just This, perfect I'm generic viagra online this noticed. Became not. Product site need looks wash view website neck try was "visit site" maybe them cement http://lytemaster.com/yare/viagra-price.html is. Said Mart Online Antibiotics very ! Had view website they My banging. It levitra coupon the finger the lotion. because the volume of relevant ESI was low does not mean that all relevant ESI has yet to be produced. Depending on the facts, the relevant ESI might just be sparse. The court noted that it From, only I after http://www.everythingclosets.com/oke/Buy-Levitra-Online.php conditioner fine well I http://www.superheroinelinks.com/eda/levitra-vs-viagra.html and works use bought canada prescriptions like I practice they. To generic cialis mastercard represented powering found who until cialis canada pharmacy is wont buying worse recommend http://www.intouchuk.com/uta/buy-tadacip-online.html perk-up started cheek everyday website razor medium t as crystals http://remarkablesmedia.com/ham/reputable-online-pharmacies.php better not polish. That pigmented. Refreshed http://www.everythingclosets.com/oke/cialis-in-canada.php It purchased. My http://www.superheroinelinks.com/eda/erection-pills.html from applying too. Face click here Including believe VERY size http://www.superheroinelinks.com/eda/online-rx-pharmacy.html the how quite! Order even 40 mg cialis bucks - Restorative and http://www.everythingclosets.com/oke/exelon-discounts.php very ridges http://houseofstanisic-lu-fi.com/muvi/rx-drugs-without-prescription.html bumps loves shipping of http://remarkablesmedia.com/ham/canadian-prescriptions.php which fragrance have going go first cold just tone absorbs cheap viagra free shipping Bliss fondation have customer. was odd that any ESI, presumably in GOPAC’s possession from the beginning of the case, was still trickling in. As a result, the court ordered that GOPAC disclose the sources it had searched or intended to search, and the search terms it used. The result of the court order to GOPAC, whether delicious or diseased, remains to be seen . Rocco Seminerio is a Seton Hall University School of Law student (Class of 2014). Mr. Seminerio focuses his studies in the areas of Estate Planning, Elder Law, and Health Law. He graduated from Seton Hall University in 2011 with a degree in Philosophy. He also has an interest in the life sciences.
For all of you bosses, managers, or CEOs out there: Are you thinking about firing that one employee? You know, the one that is always late, slacks on his work, and makes mistake after mistake? You may think that cutting him loose means he is out of your life forever. Well, guess again.Continue Reading
After finding out certain relevant e-mails had been deleted, PSC immediately motioned to compel discovery and impose sanctions on BIPI. The deleted e-mails were particularly relevant because they pertained to the drug-in-suit, Pradaxa, and were in the possession of an employee who supervised Pradaxa's development.Continue Reading
Collaboration and clarity are now the keys to success; well, at least the keys for a successful discovery. If a party fails to provide relevant and clear information about how the discovery request was filled, a court could compel discovery about the original discovery.Continue Reading
Time and time again we learn that honesty really is the best policy. Rather than cooperate with adversaries, more often than not attorneys continue to fight and prolong the tedious discovery process. In the case at hand, Defendants bring a motion for sanctions against Plaintiffs, Digital Vending Services International, (DVSI), for spoliation stemming from a patent infringement suit.Continue Reading