Authored By: Amanda Munsie

Citation: U.S. Bank Nat. Ass’n v. GreenPoint Mortgage Funding, Inc., 94 A.D.3d 58 (N.Y. App. Div. Feb. 28, 2012)

Employee/Employer Implicated: Counsel (in house and outside)

e-Lesson Learned: The producing party bears the initial cost of searching for, retrieving and producing ESI.

Tweet This: According to at least one New York court, litigants must front the costs of finding and producing ESI and hope to recoup it later.

In February 2012, the New York State Supreme Court, Appellate Division, First Department, held that the cost of finding of producing electronically stored information (ESI) is placed initially on the party producing the discovery request.  While this decision is consistent with New York’s longstanding rule that discovery requests are to be paid by the responding party, discovery in the context of ESI brings an added complication.

Authored By: Corinne B. Maloney

Citation: Silverman v. Shaoul, 913 N.Y.S.2d 870 (Sup.Ct. 2010)

Employee/Employer Implicated: Counsel, Client

e-Lesson Learned: Costs of production of eDiscovery are borne by the producing party unless said production presents an undue burden to that party or the requesting party has agreed to pay.

Tweet This: Producing party is required to pay the costs of eDiscovery production, with limited exceptions.

Electronic Discovery requests can pose substantial financial burdens for the parties to a lawsuit.  According to the New York County Supreme Court, these costs are the responsibility of the party who is required to produce the e-discovery.  However, there are a few exceptions to this general rule, including discovery requests that present an undue burden to the producing party and situations in which the requesting party has already agreed to pay the costs of production.

Authored By: Marco Ferreira

Citation: 150 Nassau Assoc. LLC v. RC Dolner LLC, 96 A.D.3d 676 (N.Y. App. Div. 2012)

Employee/Employer Implicated: Counsel, Client

e-Lesson Learned: eDiscovery disputes should be resolved among the parties. When disputes reach the court, judges will likely not resolve the issue in the best manner for the parties and will instead choose the easiest and most efficient option.

Tweet This: Resolve eDiscovery disputes without judicial intervention to avoid mutually unrewarding results.

It's no secret that courts prefer settlements over protracted litigation. Because the court system encounters an incredibly heavy case load, parties are heavily encouraged to resolve disputes amongst themselves. This is especially true for discovery disputes. Parties are expected to deal with any hiccups in the discovery process through negotiation and discussion between each other, with little court intervention.

Authored By: Catherine Kiernan

Citation: Managing Discovery of Electronic Information: A Pocket Guide for Judges (Second Edition)

Tweet This: Just Released! “Managing Discovery of Electronic Information: Pocket Guide for Judges” Review! (Part 3)

Welcome back for the third and final part of our series summarizing and highlighting the most important parts of the new electronic discovery pocket guide for federal judges.  Part One focused on the volume of electronic discovery now being used in judicial proceedings as well as proper procedures for Rule 16 conferences and the scope of electronic discovery under Rule 26.  Part Two focused on cost-shifting, subpoenas and implicated third parties, and form of production. Finally, Part Three focuses on privilege and waiver, preservation, spoliation, and sanctions.

Authored By: Erin Hendrix

Citation: In re Bristol-Myers Squibb Sec. Litig., 205 F.R.D. 437, 444 (D.N.J. 2002)

Employee/Employer Implicated: Counsel

e-Lesson Learned: Failure to comport with the duty to disclose that information exists in electronic form will make production costs unrecoverable. Additionally, market rates will trump agreed upon rates related to copying charges. Don’t ask your adversary to pay for your project.

Tweet This: (Don’t) be careful what you wish for when requesting documents.

In re Bristol-Myers Squibb Sec. Litig. presents the issue of cost allocation in electronic discovery.  Bristol-Myers Squibb was being sued over false and misleading statements about its drug, Vanlev.  As the litigation proceeded, plaintiffs first requested document production in paper form, and later requested a digital copy when they learned that Bristol-Myers Squibb had begun a scanning process.  Plaintiffs originally agreed to pay 10 cents per printed page, but later balked when they received six times the amount of material that Bristol-Myers Squibb had originally estimated. Much to Bristol-Myers Squibb’s dismay, the payment agreement was not enforceable.

Authored By: Catherine Kiernan

Citation: Managing Discovery of Electronic Information: A Pocket Guide for Judges (Second Edition)

Tweet This: Just Released! “Managing Discovery of Electronic Information: Pocket Guide for Judges” Review! (Part 2)

Welcome back for the second of our three-part series summarizing and highlighting the most important parts of the new electronic discovery pocket guide for federal judges.  Part One focused on the volume of electronic discovery now being used in judicial proceedings, proper procedures for Rule 16 conferences, and the scope of electronic discovery under Rule 26. Part Two focuses on cost-shifting, subpoenas and implicated third parties, and form of production. Finally, Part Three will focus on privilege and waiver, preservation, spoliation, and sanctions (stay tuned!)

Authored By: Catherine Kiernan

Citation: Managing Discovery of Electronic Information: A Pocket Guide for Judges (Second Edition)

Tweet This: Just Released! “Managing Discovery of Electronic Information: Pocket Guide for Judges” Review! (Part 1)

Very recently the second edition of the eDiscovery pocket guide for federal judges was released by the Federal Judicial Center.  The new edition is key to understanding how judges view eDiscovery requests and how attorneys can avoid costly sanctions and unnecessary and damaging production.  The Guide is comprehensive and expands on many of the fundamental issues surrounding electronic discovery that have further developed since the first edition. e-Lessons Learned will be posting a three-part series summarizing the Guide to help highlight the key issues that judges consider when dealing with electronic discovery.  Part One will focus on Rule 16 conferences and the scope of electronic discovery under Rule 26. Part Two will focus on cost-shifting, subpoenas and implicated third parties, and form of production (stay tuned) Finally, Part Three will focus on privilege and waiver, preservation, spoliation, and sanctions (stay tuned)

Authored By: Edvie M. Clark

Citation: Major Tours Inc. v. Colorel, 2009 U.S. Dist. LEXIS 97554 (D.N.J. Oct. 20, 2009)

Employee/Employer Implicated: State Defendants; Document Custodian

e-Lesson Learned: Cost shifting or sharing is an important alternative to consider and argue for when a protective order is denied in whole or in part. How important the sought after evidence is in comparison to the cost of production is key when evaluating cost shifting and the court will consider the seven factors set forth in Zubulake to make such a determination.

Tweet This: Cost shifting or sharing is an important alternative to consider if whole or partial production is ordered!

The court’s decision to impose a cost shifting condition on the discovery of emails began with an analysis of the seven factors set forth in the Advisory Committee Notes to Fed. R. Civ. P. 26(b)(2)(B), included a determination that plaintiffs had not established good cause for production, and ended with another seven factor test which demonstrated the importance of the court’s authority to set conditions on discovery.

Authored By: eDiscoverista

Citation: Moore v. Publicis

Employee/Employer Implicated: Document Custodians, Employers, Employees, Outside Counsel, In-House Counsel, Information Technology Professionals, Independent E-discovery vendor, Litigation Support Vendor, Information Technology Professional

e-Lesson Learned: Participation on an educational panel with counsel and expressions of impatience, dissatisfaction, annoyance, and even anger, are not grounds for untimely request for recusal made to predictive coding-savvy Magistrate Judge.

Tweet This: A legal battle vs allegedly discriminatory employers invites Judge Peck to 3rd-wheel in edisc war

Forget the books on your summer reading list, Moore v. Publicis, the high profile employment discrimination, turned e-discovery test case, boasts enough drama and intrigue to keep you on the edge of your beach chair – which is lucky, since you've already finished the Fifty Shades trilogy. The Moore v. Publicis's ticket to fame has been the epic battle between the parties and Magistrate Judge Andrew J. Peck, U.S.M.J., a known e-discovery advocate, over whether the parties will use predictive coding, a type of computer-assisted discovery.  Plaintiffs lost on their request for review of Judge Peck's first-of-its-kind opinion, in which he explicitly approved the use of predictive coding.  On June 15, 2012, their formal motion for Judge Peck's recusal suffered a similar fate.  In a 56-page opinion, Judge Peck denied Plaintiffs' formal motion for recusal as untimely and meritless, stating that his general support for the use of predictive coding, participation on an educational panel with counsel, and "expressions of impatience, dissatisfaction, annoyance, and even anger[,] are not grounds for recusal."  The bulk of the opinion cites case law in support of his finding.

Authored By: eDiscoverista

Citation: Moore v. Publicis, 11 Civ. 1279, 2012

Employee/Employer Implicated: Document Custodians, Employers, Employees, Outside Counsel, In-House Counsel, Information Technology Professionals, Independent E-discovery vendor, Litigation Support Vendor, Information Technology Professional

e-Lesson Learned: Magistrates have broad discretion in resolving non-dispositive disputes, like discovery motions, and a ruling will survive if it's well reasoned. Accordingly, your judge must consider the circumstances surrounding use of computer-assisted document review, carefully craft a protocol that contains standards for measuring reliability in terms of process and method, and build in levels of participation and quality assurance for both sides.

Tweet This: Peck's Feb 8 disc. rulings survive review; parties (read: Plaintiffs) schooled on highly deferential std. of rev.

Thanks for joining eLessons Learned for the latest installation on Moore v. Publicis!  As eDiscoverista predicted (don't look so surprised), plaintiffs filed a formal motion for review of Judge Peck's approval of predictive-coding protocol.  Because magistrates are afforded broad discretion in resolving discovery disputes, Judge Carter upheld Magistrate Peck's ruling as it was "well reasoned" and not erroneous or contrary to law, in accordance with Rule 72(a).  Peck's ruling met the well-reasoned standard because he considered the circumstances surrounding use of computer-assisted document review, carefully crafted a protocol that contained standards for measuring its reliability in terms of process and method, and built in levels of participation and quality assurance for both sides. Last Month on Moore v. Publicis… If you've just joined us, this landmark e-discovery dispute arose on February 8, 2012 in connection with plaintiffs' allegation that defendants, Publicis Groupe & MSL Group, engaged in systematic, company-wide gender discrimination against female employees by limiting women to entry-level positions.