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: Courtney O’Brien

Citation: Moreno v. Ostly, 2011 WL 598931 (Cal. Ct. App. Feb. 22, 2011)

Employee/Employer Implicated: Counsel, Client

e-Lesson Learned: Failing to disclose to the Court, and opposing counsel, that your client no longer possesses the cell phone from the relevant time frame, opposing the discovery request as too broad when you know the phone no longer exists, and then providing the new phone for inspection as if it was the old phone, will likely result in sanctions for misrepresentations to the court, and for wasting time and money.

Tweet This: Tell the Court that a Client doesn’t have the old cell phone – don’t try to pull a fast one and produce the new phone

Don’t knowingly produce incorrect electronic devices for discovery! When opposing counsel requests production of your client’s cell phone from the relevant time period for inspection, it is your duty to provide accurate information regarding the whereabouts of the phone. 

Authored By: Chris Borchert

Tweet This: Delaware Court of Chancery Issues Updated eDiscovery Guidelines

The Delaware Court of Chancery is amending its Rules 26, 30, 34, and 45 in order to update provisions relating to the retention and discovery of electronically stored information. The Court is also expanding its "Guidelines for Practitioners" to include "Discovery Guidelines," which set out the Court's expectations with regard to eDiscovery best practices.

Authored By: S.A.A.

Citation: Ford Motor Company v. Edgewood Properties Inc., U.S. District Ct. (Salas, U.S.M.J.)

Employee/Employer Implicated: Owner/Executive; Counsel

e-Lesson Learned: With all the new ways in which electronically stored information can be produced, counsel should be specific in the form in which they want or at least object within a reasonable time when it is produced in a form they don’t approve of.

Tweet This: Be Concrete! Court Requires Specificity for eDiscovery in Ford’s Contaminated Concrete Case

Be careful what you ask for…or don’t ask for! Electronic discovery may be something of a new phenomenon when it comes to the discovery of information in preparation of litigation but one idea has always remained constant: discovery requests should always be specific. That’s what Edgewood learned in Ford Motor Company v. Edgewood Properties Inc., a case that arose from a contract in which Ford agreed to provide concrete to Edgewood in return for Edgewood hauling it off the demolition site where a Ford assembly plant in Edison, New Jersey was being demolished. Besides the discovery process, what wasn’t so “smooth” was the concrete, as it later turned out that the concrete was contaminated, thereby bringing about Ford’s claim against Edgewood under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 and the New Jersey Spill Act for “contribution and indemnification for all costs as provided under the contract.”

Authored By: James B. Damiano

Citation: Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418 (D.N.J. 2009)

Employee/Employer Implicated: In house and outside counsel

e-Lesson Learned: A receiving party is required to review ESI and either accept or object to the proposed mode of production within a reasonable period of time.

Tweet This: "Hauled" to court over ESI

Imagine requesting data in native format and receiving it in Tagged Image File Format? This is what Edgewood received from Ford Motor Company (“Ford”) instead of the metadata they requested.  The discovery request came as a result of a lawsuit between Ford and Edgewood involving the removal and reuse of contaminated recycled concrete aggregate, which Edgewood procured through the demolition of an automobile assembly plant owned by Ford in Edison, NJ. To remove a portion of the concrete, Ford entered into a contract with Edgewood in which Ford agreed to provide concrete to Edgewood free of charge in exchange for its removal from the site.

Authored By: Fernando M. Pinguelo and Chris Borchert

Tweet This: Florida Becomes 29th State to Adopt eDiscovery Rules

On July 5, Florida became the most recent state to adopt specific court rules governing the discovery of electronically stored information. The amendments, which modify seven Florida state rules of civil procedure, are intended to provide more clarity and guidance for courts and lawyers, as well as help to defray the excessive costs associated with eDiscovery. Currently, 29 states have adopted specific eDiscovery guidelines. While the new rules do not require parties to “meet and confer” about specific eDiscovery issues, Rule 1.200 provides that “the court may order, or a party by serving a notice may convene, a case management conference.” These conferences are helpful in reducing preservation and production costs as courts and attorneys can decide upon specific parameters and other issues at the outset of discovery. Moreover, agreements on the scope of preservation can help prevent spoliation claims later on.

Authored By: Lauren Winchester

Citation: United States v. Briggs, 2011 WL 5881593 (W.D.N.Y. 2011)

Employee/Employer Implicated: Outside Counsel; Criminal Defendant; Government Official

e-Lesson Learned: If you want to receive ESI in a form that you prefer, then your best bet is to work out the details of discovery with your adversary so as to avoid judicial intervention and micro-management eDiscovery because you’ll likely not be satisfied with the court’s decision.

Tweet This: Gov’t Not Required to Produce ESI in Manner Requested by Defs in Cocaine Distribution Case

In his November 23 decision, federal Magistrate Judge Hugh Scott held that the government was not required to produce electronically stored information (“ESI”) in the manner requested by the defendants in a 24-person criminal cocaine distribution conspiracy.  Judge Scott made it clear that in the absence of a clear criminal standard, he would follow analogous civil standards for distribution of ESI.  But see Subsequently adopted standards released recently by criminal rules committee.   Defendant Damian Ard, joined by ten other defendants (including the named defendant, Briggs), moved to amend the criminal ESI Order to clarify the manner in which specific government ESI should be produced.  The original ESI Order required the government to choose between producing ESI in its native format and reproducing it in a searchable format.

Authored By: Phil Ryan

Citation: Richardson v. Sexual Assault/Spouse Abuse Research Ctr., Inc., 270 F.R.D. 223 (D. Md. Oct. 28, 2010)

Employee/Employer Implicated: Miscellaneous

e-Lesson Learned: When faced with objections to Rule 34 production requests, the proper response is to meet and confer with opposing counsel and then, if necessary, seek an order from the court. Parties should not resort to subpoenas to compel discover.

Tweet This: When faced with discovery objections, don’t put the subpoena-cart before the discovery-horses!

So you’re in the discovery stage of litigation and you make a request but the other side won’t produce.  No problem you think, I’ll just subpoena ‘em.  WRONG. In Richardson v. Sexual Assault/Spouse Abuse Research Ctr., Inc., Patrick Richardson filed a complaint against the Sexual Assault/Spouse Abuse Research Center (“Research Center”) alleging intentional infliction of emotional distress, tortuous interference with Richardson and his ex-wife Sheri Richardson’s divorce proceedings, and gender discrimination in violation of the Fourteenth Amendment and the Maryland State Constitution.

Authored By: Gina Barbieri

Citation: Oxxford Information Technology, Ltd. v. Novantas LLC, 2010 N.Y. App. Div. LEXIS 8496 (N.Y. App. Div. 1st Dep't Nov. 16, 2010).

Employee/Employer Implicated: Owner/Executive, information technology manager, C-level executive, owner, counsel (in-house & outside counsel)

e-Lesson Learned: The best way to protect trade secrets and other discoverable information is through a bargained for confidentiality agreement, which will likely be upheld in its original form

Tweet This: “If you bargain in favor of your privacy, you won’t fall victim to a bait-and-switch”

When confidential business information comes into play, it is imperative that parties diligently bargain to protect their interests. Once an agreement is reached the parties will be expected to uphold their side of the bargain based on the other side’s reliance.

Authored By: Michael Tucker Jr.

Citation: Brinckerhoff v. Town of Paradise, 2010 U.S. Dist. LEXIS 126895 (E.D. Cal. 2010)

Employee/Employer Implicated: In-House Counsel; Outside Counsel

e-Lesson Learned: Litigating parties have a mutual obligation to discuss the issue of electronic discovery at the discovery conference. Failure to discuss the issue results in both heightened scrutiny of a later motion to compel discovery of ESI and, if the motion fails, sifting through 4,000 pages of e-mail printouts.

Tweet This: Discuss ESI format at your discovery conference or be happy with the format you get.

From 2001-2009 Melissa Brinckerhoff was a volunteer firefighter in the town of Paradise, California.  Volunteer is a misnomer however, as the town’s firefighters were entitled to benefits and some pay.  These volunteers are also protected by various anti-discrimination statutes.  Brinckerhoff was fired in 2009.  She filed an action claiming that the fire department extended her probationary period and later terminated her because of her gender and claimed disability based on a back injury.