Meet & Confer

eDiscovery Expertise: Is Knowing Too Much A Ground For Judicial Recusal?

Just like TNT, the Second Circuit sure knows drama.  After years of protracted litigation, the Second Circuit finally put an end to an attempt to recuse a judge for knowing too much about eDiscovery and predictive coding. On April 10, 2013, in an incredibly brief order most likely meant to send a message deeper than its two sentences, a Second Circuit Judge denied a request for the recusal of Judge Andrew J. Peck from an ongoing employment discrimination case.  According to Judge Jane A. Restani, “Petitioners have not ‘clearly and indisputably demonstrate[d] that [Magistrate Judge Peck] abused [his] discretion’ in denying their court recusal motion… or that the district court erred in overruling their objection to that decision.” The contentious attempts to recuse Judge Peck stemmed from a discovery dispute after Judge Peck ordered the parties to use a method of predictive coding during discovery.  Although the parties seemed to agree that predictive coding should be used, they could not agree on the methods of predictive coding that would be implemented.  The plaintiffs believed that Judge Peck favored the defendants in his order, and therefore they moved to recuse the judge because of his established history with eDiscovery and more specifically, his history of actively advocating predictive coding. Judge Peck has a long history of participating in eDiscovery conferences  and was considered one of the Court’s “experts in e-discovery.”  National Day Laborer Organizing Netwrok v. U.S. Immigration and Customs Enforcement Agency, 2012 WL 2878130, 11 (S.D.N.Y. 2012).  Judge Peck was even involved in one of the first cases to order the discovery of electronic data.  Atlantic-Monopoly, Inc. v. Hasbro, Inc., 958 F.Supp 895 (S.D.N.Y. 1995). Despite the strong undertones of the order’s brevity, the plaintiffs continued to fight this seemingly uphill battle and later filed a cert petition to the Supreme Court. Rather than attacking Judge Peck’s background and connections to the eDiscovery community, the plaintiffs in this case should have instead accepted that judges need to actively participate in conferences and seminars to better understand the technology implicated in eDiscovery.  Just as attorneys can no longer ignore the ramifications of eDiscovery, judges too must enhance their knowledge to further develop this complicated area of law and readily adapt it to continually changing technology.  Judges should not be punished or accused of bias for engaging in programs geared towards teaching them about technology and its implications on eDiscovery.  If this were at all all permitted, judges would be afraid to participate in seminars and review panels, which would stagnate the development of the law, a process that is already far-behind the rapid progress experienced by technology. Jeffrey, a Seton Hall University School of Law graduate (Class of 2014), focused his studies primarily in the area of civil practice but also completed significant coursework concerning the interplay between technology and the legal profession.  He was a cum laude graduate of the University of Connecticut in 2011, where he received a B.S. in Business Administration with a concentration in Entrepreneurial Management. 

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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