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.”
Continue ReadingImagine 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.
Continue ReadingThe cost of filing a time-barred suit can be more than just losing the case on the defendant’s motion for summary judgment. In In re Aspartame Antitrust Litigation, the court awarded $510,138.18 in fees to the prevailing party after defendants won a motion for summary judgment because the plaintiff’s claims were time-barred by the statute of limitations. The largest portion of the fees being disputed involved the costs of creating a litigation database, processing and hosting electronic data, conducting keyword and privileged screens on the documents in the database, making documents OCR searchable, extracting metadata, and related activities. A closer examination of the court’s breakdown of the cost is necessary to determine what costs a losing plaintiff can expect to be burdened with.
Continue ReadingUPDATE: The court opinion previously filed by Judge Scheindlin involving the case Nat’l Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency has been withdrawn. Significantly, the opinion stated that metadata that is maintained by an organization is assumed to be producible under the Freedom Of Information Act, unless the organization is able to prove that the data is not “readily reproducible.” The opinion also specified guidelines indicating the appropriate amount of metadata that should supplement any collection of digital record. This opinion has since been withdrawn and Judge Scheindlin expressly stated, in so doing, that “it is the intent of this Court that the decision shall have no precedential value in this lawsuit or in any other lawsuit” and reasoned that it “was not based on a full and developed record.” Click here for a copy of the order.
Continue ReadingNot only was Jannx scolded by the District Court on three separate issues, they are now responsible for significant legal fees, and lost a motion to protect their own data. It’s safe to say the Indiana District Court was not impressed with the Jannx legal team. Basically, this case involves a dispute over pre-trial discovery motions between the plaintiff, Jannx Medical Systems and defendants, Methodist Hospital, Crothall Healthcare, Inc., and Propoco Professional Services. The Court issued an opinion and order on Defendant’s motion to get Jannx to comply with electronic discovery and Jannx’s motion to withhold electronic data from discovery by reason of trade secrets, etc.
Continue ReadingLegal counsel for both parties left the judge frustrated from unprofessional conduct and lazy discovery techniques. Judge Hollows stated, “In the future, the court will decline to hear any discovery matters where the Federal and Local Rules are not strictly followed.” So, when it comes to electronic discovery being strictly followed, keep in mind the following: 1) address the issue EARLY; 2) keep documents in easily accessible format; and 3) supply metadata for pivotal documents. In the facts, Brinckerhoff worked for the Town of Paradise as a volunteer firefighter. Subsequently, she was appointed to a civil service position and eventually terminated. She brought suit for wrongful discrimination and requested documents in their original format. Included in the documents was an evaluation of plaintiff while she worked for the Town. In Plaintiff’s motion to compel, she argued that defendant should be required to produce responsive emails in their native format (not hard copy).
Continue ReadingFrom 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.
Continue ReadingRecently, our very own Fernando M. Pinguelo was able to sit down with Brazillian Cyber Law Attorney Opice Blum for a discussion on the Congress on Electronic Crimes and Protection. Below is a partial transcript of their Question-and-Answer session: Q: Thank you, Renato, for sitting down with me to discuss the latest developments in tech crimes and what experts like you are doing to help businesses and individuals prevent these crimes and address them when they hit home. Tell me a little bit about your background and the composition of your law practice. A: My name is Renato Opice Blum and I am a Brazilian Attorney and Economist who specializes in High Tech Law. I am CEO of Opice Blum Attorneys at Law, one of the most respected South American firms.
Continue ReadingSuppose you’ve got a business. Not just any business, however, but a state-of-the-art business. Not necessarily a business that sells state-of-the-art products or services, but a business that you run in a state-of-the-art manner. Instead of carrying briefcases full of notes, you’ve got compact flash cards full of data. You don’t even remember the cost of a first-class stamp because all of your correspondence is done by email. You don’t have boxes and drawers full of hard files around the office because you’ve got everything stored and backed-up on hard drives and servers. You don’t have a calendar on your desk because you’ve got your daily schedule synched to the Smartphone that never leaves your side. You use every possible gadget to make sure that you are doing everything in the most technologically advanced and efficient way possible. Now, think to yourself: What happens one day when your company winds up on the wrong end of a lawsuit? Perhaps even a completely bogus, frivolous lawsuit. Even if you know that you’ll end up victorious in the end, you might find yourself bogged down in an eDiscovery quagmire once you have to turn over all of your “documents” during discovery.
Continue ReadingDon’t take your discovery obligations lightly! When your adversary requests documents from you during discovery, it becomes your obligation to undertake a thorough search of your files (electronic or otherwise) to locate those documents and produce them in a timely manner and in the format requested by your adversary. Failing to do so could cost you more than $25 Million dollars, as it did to the plaintiff in B & G Management v. Lexington Insurance. Can you afford that?
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