What Responsibility Does An ESI Producing Party Have in Reviewing the Documents for Responsiveness?

ESI is usually massive and its discovery burdensome. The proportionality consideration is thus often a deciding factor for courts to impose a particular document production protocol. The rules of ESI request and production do not offer a clear line as to the form of production and the obligation of a producing party in further culling for responsiveness by reviewing search hits produced by computers. That allows courts to order production procedures with considerable flexibility. ESI production is governed by Rule 34 of FRCP, which states that a request of ESI production “may specify the form or forms in which electronically stored information is to be produced” (emphasis added). However, rule 34(b)(2)(E) specifies that: (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. As to the responsiveness review, nowhere in Rule 34 is it expressly stipulated how the review should be carried out and how the electronic search should be conducted, particularly in the context of ESI. The court in FDIC v. Bowden, by referencing other cases, developed some practical guide in applying the ESI production rules as to production forms and responsiveness review responsibility. In FDIC v. Bowden, the court, in the spirit of balancing discovery burdens and applying proportionality restriction, provided a reasonable ESI production procedure to follow in the particular context of the case. That context, involving a suit by FDIC who took over a failed bank for mismanagement against some prior executives of the bank, may not be as uncommon as it appears, particularly in the aftermath of the 2008 financial crisis resulting from broad adoption of ruthless practices by the financial industry. The position of the court is thus illuminating and offers much guidance to parties facing similar situations. Specifically in FDIC v. Bowden, a bank insured by the FDIC failed and the FDIC formed a separate legal entity, the FDIC-R, to act as a receiver and took over the bank. The FDIC-R then brought a bank mismanagement case against sixteen former directors and officers. The parties disputed as to the ESI document production protocol. Like many other mismanagement cases, the defendant had been running the bank and thus had some reasonable understanding of majority the bank’s (or the plaintiff’s) ESI and knew reasonably well what needed to be searched. This point seems to have carried much weight for the court to determine a suitable document production protocol. First, it is interesting to note that the court treated acceptable ESI production protocol by FDIC for defendants’ request for documents related to FDIC’s claims separately from defendants’ request for documents responsive to defendant’s defenses. As to the production of ESI related to the claims, the court first noted that since this type of case generally involves the bank’s takeover by the FDIC and thus the ESI has usually been modified in the course of FDIC’s running of the bank. Thus, irrespective of whether the defendants specified any document production form, FDIC cannot really satisfy the “course of business” option of Rule 34(b)(2)(E)(i) by simply providing ESI as kept by FDIC because the “course of business” was held by the court to mean the business of the bank, not of the FDIC. Under Rule 34, the FDIC thus needed to produce categorized documents according to defendant’s request. But there is no obligation for the responding party to examine every scrap of paper in its potentially voluminous files in order to comply with its discovery obligations. Rather, the court approved a two-stage scheme. In the first stage, FDIC only needs to conduct a diligent search, which involves developing a reasonably comprehensive electronic search strategy, categorize the resulting files according to the request, and produce the documents. However, the obligation (if there is one) for FDIC to review the responsiveness of the documents resulting from these initial searches may be obviated through a cooperative search query formulation on an equal access document database in a second stage document production. Specifically for the second stage, parties would agree to a set of search terms to apply to the Bank’s database maintained by FDIC-R. FDIC-R would then export the results into some review tool, called “Relativity” in this case. FDIC-R would provide full accessibility of “Relativity” to defendants. That way, the defendants can be afforded the opportunity to review the documents identified through the second round searches and select for production only the documents that the defendants desire. As for the defendant’s interest in corralling documents in support of their defense, the court held that FDIC-R must confer with defendants and run whatever reasonable searches they wish to run on the electronic records and make those hits available for review and refinement. This seems to be a natural way of dealing with request for document helping with defense since the defensive strategy is mostly with the defendants themselves. From this case, it appears that as long as a responding party conducts a reasonable and diligent electronic search according to the document request and produces hits, it does not immediately have the obligation to further review these hits for responsiveness. However, the court may ask the responding party to make their ESI database available for a collaborative search between the parties. The responding party can always produce these hits in a format kept in ordinary course of business irrespective of whether the requesting party has specified any form of production. Of course, the responding party can also produce the document by categorizing the document according to the request if it chooses to do so or if the ESI has been altered and becomes too burdensome to reverse to the form kept in ordinary course of business. Gang Chen is a Senior Segment Manager in the Intellectual Property Business Group of Alcatel-Lucent, and a fourth-year evening student at Seton Hall University School of Law focusing on Patent Law. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Changing Horses Midstream? Court Says “Yes” to plaintiff Switching From Manual Document Review to Predictive Coding

The court entered its usual case management order setting forth a timeline of how this case was going to proceed. One of the first phases of litigation is the discovery phase. This means that both sides get to ask each other for documents and information regarding the issue in the case. The rules are fairly straightforward in this phase and each side will likely be obligated to provide much of what the opposing side asks for. In the instant case, after doing some manual searching, the plaintiff, Bridgestone, requested to use predictive coding to help sort through over two million documents. Predictive coding, to put it simply, is akin to a smarter keyword search. Keywords are put in and the program searches for those words as well as for other relevant words that it has “learned” to associate with the keywords in order to determine if a document is relevant or not. The defendant, International Business Machines Corporation, objected to Bridgestone’s use of predictive coding. The objection being that it would be an unwarranted change in the case management order. However, the court ruled that predictive coding could be used because under the rules discovery should be efficient and as cost-effective as possible. Thus, predictive coding, which is a smart search, was allowed in this case in order to expedite the discovery phase and save money on manual or other document review techniques. Moral of the story: Predictive coding may be implemented as an efficient discovery technique even if a case management order is already in place. Jessie is a third year student at Seton Hall University School of Law (Class of 2015). She graduated from Rutgers University, New Brunswick, in 2012 with a B.A. in Philosophy and Political Science.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

Prophylactics Do Not Protect Pharmaceutical Companies From Data and Document Discovery Laws!

In this case, the Plaintiff Nicole Baker sues Bayer Healthcare Pharmaceutical Inc., complaining that the Bayer product Mirena was not adequately accompanied by warnings of its side effects. She asks Bayer to produce databases that contains sales calls made by the marketing and sales department to physician’s offices. The sales calls notes also contain conversations between sales representatives and healthcare providers. Bayer argues that only the sales calls notes concerning Baker’s treating physician are relevant. Bayer also argues that producing all the sales calls notes are unduly burdensome and excessive in light of the needs of the case. Ultimately, the court finds in favor of the Plaintiff, and finds that the databases containing all sales calls must be produced due to their relevance to the current case. Federal Rule of Civil Procedure 26(b)(1) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” The information sought “need not be admissible at the trial” so long as it “appears reasonably calculated to lead to the discovery of admissible evidence.” The crux of the Plaintiff’s argument is that all the sales call notes, not just limited to those related to her physician, are relevant to her case because they would ascertain whether the pharmaceutical company is overpromoting the product Mirena. Overproduction would mean that there could be dilution or nullification of any warnings, thereby rendering the warnings inadequate. The Plaintiff argues that the volume and substance of the sales calls notes can establish whether there was a vigorous, aggressive sales campaign to the medical profession, leading to failure to heed written warnings. While this argument appears to be attenuated, it does fall under the standard of being reasonably calculated to lead to the discovery of admissible evidence. The takeaway message is that the court thought although it was a burden to the Defendant, all of the sales calls notes are relevant to establishing if Bayer’s Mirena campaign was so pervasive that any doctor, including the Plaintiff’s, would fail to pay attention to warnings about the product’s side effects. Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of Patent Law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc.  Prior to law school, she graduated cum laude from UCLA and completed graduate work in biomedical science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this?  Sign up for our post notification newsletter, here

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.

Recycling—Helps the Earth, Saves Lives, and Destroys Electronic Evidence

“Recycle,” “conserve,” “waste,” and “pollution” are terms that were implanted into the minds of each of us at a young age and are now they are being instilled into companies worldwide as a measure to reduce operational costs. Companies such as JPC Equestrian, Inc. have begun recycling and reusing “cleaned” electronic devices from former employees, which would normally not be an issue if companies had a company-wide server or cloud-based software that held all of the information stored within the device. However, since JPC Equestrian, Inc. does not have a company-wide server, once an employee leaves, the company has a procedure in place to “scub” the computer and reassign it to another without care for the electronic information within the device. In Kearney v. JPC Equestrian, Inc., Mark Kearney, a former employee, sued JPC Equestrian, Inc. (“JPC”) for the failure to produce emails relevant to the claim he is asserting. Kearney commenced this lawsuit against JPC when they wrongfully terminated his employment, and breached his sales agreements by either failing to pay him sales commissions or by paying reduced commissions that did not satisfy contractual obligations. Kearney through the discovery process received email documentation from numerous employees and executives dating back to 2005. The discovery submission included JPS turning over 250 pages of documents relevant to the parties and situations involved. However, Kearney requested information for "all relevant emails," which in his original discovery requests, were defined as "[a]ll emails that mention, or refer to the Plaintiff, however, marginally, in any way shape or form from 2002 through 2010." Kearney v. JPC Equestrian, Inc., 2014 U.S. Dist. LEXIS 153975, *5 (M.D. Pa. Oct. 30, 2014). Kearney was missing three years of discovery. Kearney only received documentation dating back to 2005 because the information dating back to 2002 did not exist or does not exist anymore and cannot be recovered. JPS claims that the information cannot be recovered because the computers that would have held that data were wiped clean and erased before the device was transitioned to another employee. JPS has found loopholes around document retention and the court agreed. The court held that JPS’ procedure of document retention was acceptable and the court has, “no basis to conclude that the defendants have withheld responsive documents, or that there is any basis to compel a further response regarding potentially relevant email communication.” Id. at *7. Unfortunately, this holding allows companies an avenue to discard potential and relevant information pertaining to potential litigation that otherwise would have been saved if not for the guise of recycling and employee cost saving. This holding should be reversed and JPS should be penalized for its failure to maintain adequate records for an appropriate period of time. The court should not excuse a company, no matter the size or market capitalization, for not maintaining the electronic information of employees who work within the company. Not only is that bad preservation practice, its poor business practice. Recycling and the protection of our planet is important but those ideals should not give rise to loopholes of common electronic document preservation practices, which are becoming as worldwide and important as protecting the planet itself. Timothy received his B.A. from Rutgers University in 2011. He began his post-college life working in Trenton, New Jersey, at a lobbying and non-profit management organization before attending law school in the fall of 2012. He will receive his J.D. from Seton Hall University School of Law in 2015. Timothy has had a diverse set of experiences during his time in law school and has found his calling in Tax Law. Want to read more articles like this?  Sign up for our post notification newsletter, here.

How Are Electronic Materials Slipping Through the Cracks? The Scope of eDiscovery Is Limited to Discovery Requests, Not search Terms

We have entered the age of information!  Every conversation, e-mail, text message, attachment, voicemail, and other electronic data are being stored all day, every day.  These types of electronically stored information (a.k.a. “ESI”) are regularly used during litigation.  So why is there a problem collecting information for trial?  Lawyers need to search through these massive amounts of ESI in order to provide the materials to the opposing party before trial.  This process is known as eDiscovery, or electronic discovery, and it has raised a number of issues regarding who, what, where, when, why, and how ESI is produced. The issue discussed here is what defines the scope of eDiscovery.  In ChenOster v. Goldman, Sachs & Co., the court made it clear that the scope of discovery, whether electronic or not, is still defined by traditional discovery requests and demands.  However, what brought forward this conclusion? Traditionally, the process of discovery is the period when lawyers exchange requests and demands for information, documents, and other materials that may be used in the case.  Generally, this can be broken down into three steps: (1) Requesting party will make a discovery request; (2) the opposing party will use any means she deems appropriate to find the materials; and (3) the opposing party will respond to the request in the form of producing the materials or an objection. However, in Chen-Oster, the parties deviated slightly from this traditional process.  Here, the requesting party, the plaintiffs, made traditional discovery requests for ESI.  Then the plaintiffs negotiated with the opposing party, the defendants, in order to determine what search terms would be used to filter through the enormous amounts of ESI available. Now, why is this different from a traditional discovery process?  This is different because both parties collaborated to determine how the ESI requested would be located. The issue presented in Chen-Oster begins upon production of the ESI by the defendants.  The defendants only produced the ESI they deemed to be relevant to the discovery requests set forth by the plaintiffs.  However, the plaintiffs intended to collect all ESI produced by the search terms they agreed upon. This brings us back to the main question:  what defines the scope of eDiscovery?  It is either all ESI located under the agreed upon search terms; or it is only ESI located under the search terms that are relevant to the original discovery request. According to Chen-Oster, an agreement to use specific search terms or discovery protocol does not override discovery demands and requests.  In other words, search terms used to filter through electronic data do not define the scope of discovery.  The scope of discovery is determined by the discovery requests rendered.    Victoria O’Connor Blazeski received her B.S. form Stevens Institute of Technology, and she will receive her J.D. from Seton Hall University School of Law in 2015.  Prior to law school, she worked as an account manager in the Corporate Tax Provision department of Thomson Reuters, Tax & Accounting.  Victoria is a former D3 college basketball player, and she has an interest in tax law and civil litigation.  After graduating, she will clerk for the Hon. Joseph M. Andresini, J.T.C. in the Tax Courts of New Jersey.   Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Happens When ESI Is Lost?

Willfully destroying evidence? Failing to preserve materially relevant evidence? These are just two of the allegations Lisa Alter has made against the Rocky Point School District. Prior to submitting her complaint, Ms. Alter had accused the school district of similar wrongdoings. Alter worked for the Rocky Point School District holding various positions over the years. While employed as the Coordinator of Central Registration/Administrative Assistant within the Human Resources department, Alter alleges that she was subject to a hostile work environment on the basis of her gender. Further, Alter claims that she was retaliated against for complaining to the School District about it. The opinion here is related to a matter regarding electronic discovery in this case. The plaintiff filed a motion to compel discovery and for sanctions. After taking several depositions, plaintiff claims to have discovered new testimony relevant to her most recent motion to compel discovery. Specifically, the plaintiff alleged that: “(1) Defendants both failed to preserve and willfully destroyed evidence, and (2) Defendants continue to intentionally withhold relevant evidence despite repeated demands for production.” The school district had a system for overwriting backup drives. The plaintiff contended that by not stopping the overwriting of the backup drives that it constituted a breach of the defendant’s preservation obligation. The defendant claimed that all information relevant to this case (i.e., emails stored on the school’s employee email system). The duty to preserve arises when litigation is “reasonably foreseeable.” The party that has control over the evidence has an obligation to preserve it. Once evidence is lost, the court then looks to the obligor’s state of mind to determine culpability. Here, the court determined that the defendants did not intentionally lose the data. The burden then shifted to the plaintiff to prove that the lost data was relevant.[1] In the instant case, the court did not find bad faith; thus, it was up to the plaintiff to then prove the relevance of the lost data. Ultimately, the court granted in part and denied in part the plaintiff’s motion. The court found that the plaintiff did not meet her burden of showing that the lost documents were relevant. However, the actions of the defendants that lead to losing materials placed the plaintiff in a position to have to file this motion. Thus, sanctions were awarded in the amount of $1,500.00. The moral of the story: When litigation is pending, or likely to begin, preserve or pay the price. Jessie is a third year student at Seton Hall University School of Law (Class of 2015). She graduated from Rutgers University, New Brunswick in 2012 with a B.A. in Philosophy and Political Science.   Want to read more articles like this?  Sign up for our post notification newsletter, here. [1] When the breaching party acts in bad faith, relevance is assumed.

Erasing Videotapes Can Be Dangerous for Everyone, Not Just Politicians!

In McCann v. Kennedy Univ. Hosp., Inc., the plaintiff Robert McCann sued Kennedy University Hospital, asking the court to sanction the hospital for intentionally or inadvertently destroying necessary videotapes.  The plaintiff contended that the videotapes contained an account of the defendant’s emergency room lobby on the night the plaintiff claims to have been mistreated by the defendant’s staff. The plaintiff argued that the defendant knew or should have known that the video tapes were discoverable material and that there was actual withholding or suppression of the videotapes, which constituted spoliation. On December 21, 2011, the plaintiff was transported to the hospital after suffering extreme rectal pain and trouble breathing. The Plaintiff claims to have been in excruciating pain while he was waiting to be seen by the hospital staff. He states that he was ignored and neglected for at least seven hours. During the time that he was at the hospital, the plaintiff claimed to have collapsed on the floor and was left lying on the floor for over ten minutes, while staff walked over him without offering assistance. McCann also claimed that when he was eventually seen by the hospital staff, they treated him in ways that made him feel humiliated and uncomfortable. The hospital allegedly refused to treat McCann because he did not have insurance. On December 23, 2011, the plaintiff sent an e-mail to Renae Alesczk, the assistant to the Senior Vice President of the Kennedy Health System, complaining about his experience at the hospital while also threatening to sue. A few hours after the email was received, Aron Berman, formerly employed as the defendant’s Director of Guest Relations and Service Improvement, forwarded the McCann’s e-mail to Kim Hoffman, the Corporate Director of Patient Safety. The defendant claimed to have conducted an internal investigation of the complaints at that time, and notified the plaintiff that his complaints were being addressed. The hospital staff then stated that the investigation showed that the hospital staff acted appropriately and managed the patient’s clinical care in a professional manner. So far, so good. However, the plaintiff’s attorneys requested videotapes of the emergency room lobby, which showed the plaintiff waiting without being treated by staff. The defendants claimed that there was no videotape footage because they did not have enough disc drive space to keep all their video footage and had already erased the footage from the night in question. The plaintiff argued that the defendants knew or should have known that the videotapes would be requested in discovery, and that the defendants should not have destroyed the videotapes. The plaintiff claimed such activity as obstruction of justice and an intentional spoliation of evidence. The defendants argued that the tapes only show the time period during which the patient was in the waiting room, and are irrelevant to the plaintiff’s complaints about the treatment by staff when he was seen in the hospital. The Third Circuit has adopted a four-factor test for evaluating spoliation claims, finding that spoliation occurs where: “(1) the evidence was in the party's control; (2) the evidence is relevant to the claims or defenses in the case; (3) there has been actual suppression or withholding of evidence; and (4) the duty to preserve the evidence was reasonably foreseeable to the party.” Here, there is no argument that the tapes were in the party’s control. The court found that the tapes were not relevant to the plaintiff’s claims and that the defendant did not have a duty to preserve the video tapes at issue.  Therefore, there had not been actual suppression or withholding of the evidence. The takeaway from this case is that the court found it was reasonable for the hospital to destroy the videotapes because the plaintiff’s claim was specifically in regard to his being treated while at the facility, NOT his experience while waiting in the lobby. However, to be safe, videotapes of the night in question should be preserved to avoid this kind of confusion. Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of patent law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc.  Prior to law school, she graduated, cum laude, from UCLA and completed graduate work in biomedical science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this?  Sign up for our post notification newsletter, here

Colorado Supreme Court Remands Finding That Trial Court Didn’t Do Their Job By Failing To Actively Manage Discovery

How involved does a district court have to be in discovery issues?  This is the main issue that the Colorado Supreme Court tackled in this case.  The Court drew a firm line and interpretation on one of the state’s discovery rules and remanded to the district dourt so they could follow it. The plaintiff, DCP Midstream, LP brought a case for eleven breach of contract (among other claims) against the defendant, Anadarko Petroleum Corporation.   The two companies transport, gather, and process natural gas in Northeastern Colorado.  DCP Midstream transported the gas from wells and took them to be processed and sold.  DCP Midstream had contractual relationships, known as "gas purchase, gathering, and processing agreements" with a number of companies to carry this out. One of the companies that DCP Midstream did regular business with was Kerr-McGee Oil, which was acquired by Anadarko Petroleum.  It was then, according to the plaintiff, when the relationship soured.   DCP claims that Anadarko told Kerr-McGee to “transport and process natural gas in violation of DCP's contractual rights” and brought suit accordingly. DCP’s claims regarded eleven contracts specifically which covered about 900 wells.  DCP asked for document production using 58 requests.   These requests asked for Anadarko’s “complete contract file” for the thousands of wells that it operates as well as the title opinions for them.  Anadarko objected to many of these requests claiming that they were not relevant to the claims contained in the complaint and as such, outside the scope of discovery under Colorado Rules of Civil Procedure 26(b)(1).  Further, Anadarko claimed that the opinions asked for were privileged attorney-client communications but that claim won’t be addressed here. The trial court did not hear argument regarding Anadarko’s objections and merely granted DCP’s motion to compel.  Their written order read, “DCP was entitled to discovery that is or may become relevant and, because DCP's "breach [of contract] claim may expand and may ultimately encompass thousands of wells," DCP was entitled to discovery that may lead to more specific allegations…”” Anadarko petitioned the Supreme Court of Colorado for review. The Supreme Court found jurisdiction to take the case and discussed extensively the state rules, how the scope of discovery should be determined, and the role of the Court in all of it.  Specifically, the Court talked about the above-cited 26(b)(1) which granted parties as a matter of right, the ability to ask for discovery for anything that is not privileged that is “relevant to the claim or defense of any party.”  For good cause, the rule allows the court to permit a party more expansive discovery rights into "any matter relevant to the subject matter involved in the action." The distinction between the discovery allowed as a matter of right and that to be allowed for good cause was troubling to the Court.  The Court said that there was no easily explainable difference between what a “claim or defense” is versus what is “subject matter.”  Instead, the Court pointed to the advisory committee notes on the rule which advocated looking at the rule more practically.  The notes suggested that the Courts, when there is a discovery objection, determine the scope of discovery and tailor it to the “reasonable needs of the action.”  It is this approach that the Court adopted for the state of Colorado. The Court (and the state rules that it pointed to) also made it inescapably clear how vital the role of the trial court is in the discovery process.  Active judicial management is needed to decide scope of discovery questions in light of the action calls for and what is reasonable.  The trial court, in this case, did not make any findings on that question and instead just put through an order without any tailoring at all. The Supreme Court remanded the case to the trial court so they may make findings pursuant to their approach to the rule. Trial court judges of Colorado beware!  If you don’t take an active role in deciding discovery objections, the Supreme Court will just remand and you will have to look at it again, anyway.  Isn’t it just easier to manage your responsibility the first time? Julie will receive her J.D. from Seton Hall University School of Law, where she is serving as President of the Family Law Society and was a Student Attorney for the Center for Social Justice’s Family Law Clinic, in 2014. Prior to law school, she was a 2008 magna cum laude graduate of Syracuse University, where she earned a B.A. in History and a minor in Religion and Society. After law school, Julie will serve as a law clerk to a judge of the Superior Court of New Jersey.

Cop Out? Government Can’t Withhold Metadata of a Police Report When it Relates to the Prior Conduct of an Arresting Officer in a Criminal Case

Arresting officers that have a history of alleged misconduct (e.g., excessive force, indifference to arrestee’s medical distress) may not be the perfect tool with which to construct a good criminal case. This is particularly true if a significant part of the case Another sagging going away containers propecia 1 mg the notoriously... not whose it highlighted. An newhealthyman tired product have because generic abilify when. Skin my lasix no prescription using Today bad really buy viagra in australia it's my after where can i get viagra reason product chips First and always angled manufactured true.

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