Meet & Confer

Can a Court Compel Discovery about Discovery?

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.

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Can You “Triangulate” for ESI? Not without the Other Party’s Permission.

On October 4th of 2013, the Northern District of California issued a tentative ruling in a discovery dispute where the Defendant had “triangulated” its employees to identify who would possess relative discovery documents. It appears the Court had no issue with the “triangulation” technique.

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Want to Claim the Producing Party is Tardy? First, Agree on Protocol for Production of ESI.

The producing party in a discovery request can be tardy producing documents, while making numerous generalized objections in a response, and still not have waived the party’s right to valid objections under Fed. R. Civ. P. 26 or Fed. R. Civ. P. 34.

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When Parties Fail to Cooperate During Discovery, Everybody Loses

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.

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Honesty is the Best Policy, and Cell Phone Upgrades Are Not An Excuse

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. 

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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.

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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.”

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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.

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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.

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Government Not Required to Produce ESI in Manner Requested by Defendants in Cocaine Distribution Conspiracy 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.

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