Meet & Confer

All That Glitters is NOT Gold

Plaintiffs asked Defendants for documents to be scanned and produced as searchable PDFs.  Defendants did exactly that.  So, there’s no problem, right?  Wrong.  Plaintiffs felt a little slighted, to say the least, after receiving the unorganized files.  If only they asked for hardcopies instead. The court found that the term “documents” as defined in FRCP 34(b)(2)(E)(i) does not include ESI, so the rule’s requirement that documents be produced either in the usual course of business or labeled to correspond to categories in the request does not apply to ESI.  Once the parties agreed to transfer hard copy documents in an electronic form, that means of production is governed by the rules for ESI, and Plaintiffs in this case met their obligations under this rule without organizing or labeling the disclosed ESI. Plaintiffs wanted Defendants to identify the particular discovery request to which each document responds, but to be fair, Defendants already went through the effort of scanning the approximately 20,000 documents.  Plaintiffs tried to argue that Defendants’ storage of the documents in hard copy meant that scanning the documents in order to produce them for discovery should not abdicate Defendants’ responsibility to produce them as organized in the ordinary course of business.  It may seem surprising this argument was unsuccessful, but is it really? The court found that the parties stipulated out of FRCP 34(b)(2)(E)’s default provisions when the Plaintiffs’ requested items in scanned electronic form, and that Plaintiffs technically received exactly what they asked for.  Another hang-up for the Plaintiffs was FRCP 34(b)(2)(E)(iii) not requireing a party to produce the same electronically stored information in more than one form, which includes hardcopies. Beyond the facts and the ruling, this case should stand for the proposition that blindly requesting ESI is ill-advised.  Parties should know enough to know exactly what they need from a discovery request, and how to make that request as accurately and effectively as possible.  This decision may not exist if Plaintiffs simply asked for the documents to be scanned and produced in the usual course of business.  While Defendants may not have eagerly acceded to such a request, the request’s denial would have raised some red flags for Plaintiffs and forecasted what would be their eventual dissatisfaction if they merely asked for the documents to be scanned as searchable PDFs. Samuel is in the Seton Hall University School of Law Class of 2015 pursuing the Intellectual Property concentration. He received his master’s from the Rutgers Graduate School of Biomedical Sciences and became a registered patent agent prior to entering law school. Want to read more articles like this?  Sign up for our post notification newsletter, here.

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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