Explore

E-Discovery Rules

Finishing Discovery Right, eDiscovery Competence Series Part 3

The first five of California’s requirements for fulfilling a lawyer’s duty of technology competence for eDiscovery all pertained to the initial steps that must be taken at the very beginning of a new matter, even before formal discovery has begun. The remaining four requirements all pertain to successfully completing actual discovery, including negotiation, collection, search and production of ESI.

Read More

Starting Discovery Right, eDiscovery Competence Series Part 2

California promulgated Formal Opinion No. 2015-193 in 2015, which established a duty of technology competence for eDiscovery and identified nine specific requirements for fulfilling that duty, which have been widely discussed as a useful model for all attorneys. The first five of those requirements all pertain to the initial steps that must be taken at the very beginning of a new matter, even before formal discovery has begun.

Read More

The Evolving Duty of Technology Competence, eDiscovery Competence Series Part 1

In discovery specifically, and in legal practice generally, the role of electronically-stored information (ESI) and new technology has grown exponentially over the past decade. As a result, it has become a practical reality that effective legal practice and effective discovery requires some level of technology literacy and competence, and since 2012, that practical reality has been slowly transforming into a formal requirement.

Read More

Five Key Points from the Sedona Conference Commentary – Proportionality Series, Part 8

In this case law survey, we will briefly review a variety of cases from across 2016 that have touched on proportionality in discovery since the December 2015 Amendments.  We will review them in chronological order, beginning with these four from the first half of 2016: In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016); Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304 (S.D. Ind. Mar. 24, 2016); Hahn v. Hunt, Case No. 15-2867 (E.D. La. Apr. 20, 2016); and Mitchell v. Reliable Sec., LLC, Case No. 1:15-cv-03814-AJB (N.D. Ga. May 24, 2016).

Read More

The Sedona Conference Commentary on Proportionality – Proportionality Series, Part 7

In this case law survey, we will briefly review a variety of cases from across 2016 that have touched on proportionality in discovery since the December 2015 Amendments.  We will review them in chronological order, beginning with these four from the first half of 2016: In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016); Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304 (S.D. Ind. Mar. 24, 2016); Hahn v. Hunt, Case No. 15-2867 (E.D. La. Apr. 20, 2016); and Mitchell v. Reliable Sec., LLC, Case No. 1:15-cv-03814-AJB (N.D. Ga. May 24, 2016).

Read More

Key Points from the Case Law Survey – Proportionality Series, Part 6

In this case law survey, we will briefly review a variety of cases from across 2016 that have touched on proportionality in discovery since the December 2015 Amendments.  We will review them in chronological order, beginning with these four from the first half of 2016: In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016); Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304 (S.D. Ind. Mar. 24, 2016); Hahn v. Hunt, Case No. 15-2867 (E.D. La. Apr. 20, 2016); and Mitchell v. Reliable Sec., LLC, Case No. 1:15-cv-03814-AJB (N.D. Ga. May 24, 2016).

Read More

Cases from 2017 – Proportionality Series, Part 5

In this case law survey, we will briefly review a variety of cases from across 2016 that have touched on proportionality in discovery since the December 2015 Amendments.  We will review them in chronological order, beginning with these four from the first half of 2016: In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016); Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304 (S.D. Ind. Mar. 24, 2016); Hahn v. Hunt, Case No. 15-2867 (E.D. La. Apr. 20, 2016); and Mitchell v. Reliable Sec., LLC, Case No. 1:15-cv-03814-AJB (N.D. Ga. May 24, 2016).

Read More

Cases from Late 2016 – Proportionality Series, Part 4

In this case law survey, we will briefly review a variety of cases from across 2016 that have touched on proportionality in discovery since the December 2015 Amendments.  We will review them in chronological order, beginning with these four from the first half of 2016: In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016); Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304 (S.D. Ind. Mar. 24, 2016); Hahn v. Hunt, Case No. 15-2867 (E.D. La. Apr. 20, 2016); and Mitchell v. Reliable Sec., LLC, Case No. 1:15-cv-03814-AJB (N.D. Ga. May 24, 2016).

Read More

Cases from Early 2016 – Proportionality Series, Part 3

In this case law survey, we will briefly review a variety of cases from across 2016 that have touched on proportionality in discovery since the December 2015 Amendments.  We will review them in chronological order, beginning with these four from the first half of 2016: In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016); Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304 (S.D. Ind. Mar. 24, 2016); Hahn v. Hunt, Case No. 15-2867 (E.D. La. Apr. 20, 2016); and Mitchell v. Reliable Sec., LLC, Case No. 1:15-cv-03814-AJB (N.D. Ga. May 24, 2016).

Read More

A Balm in Gilead – Proportionality Series, Part 2

In January 2016, just a few weeks after the amendments became effective, a court in California had the opportunity to apply the amended rule in Gilead Sciences, Inc. v. Merck & Co., Inc., No. 5:13-cv-04057-BLF (N.D. Cal. Jan. 13, 2016).  This was a patent infringement case in which Merck alleged that Gilead was infringing “two of its patents to a certain kind of nucleoside analog.”  Gilead claimed that “it was the one to conceive and reduce to practice the inventions.” Read to see how the description of the Magistrate Judge’s summation of the proportionality requirement and discussion of recent amendments reflect the intentions of the amendments to elevate and emphasize proportionality as central to determining discovery scope.

Read More

Everything in Moderation, Including Discovery – Proportionality Series, Part 1

On December 1, 2015, the most significant amendments to the Federal Rules of Civil Procedure became effective since the 2006 amendments that made the era of electronically-stored information official.  Among the rules revised was Federal Rule of Civil Procedure (“FRCP”) 26(b)(1), which defines the scope of discovery.  The change brought the existing-but-overlooked concept of proportionality front and center in an attempt to combat the runaway cost and scale of discovery in the digital era. So, in the two years since this amendment became effective, has the role of proportionality in discovery actually changed?  How are courts applying the multi-factor proportionality test now enshrined in FRCP 26(b)(1)?  Have objections based on proportionality been successful?

Read More

Privilege, Evolution, and Key Takeaways – Hold On Series, Part 7

In most situations, legal hold notices are communications from an in-house counsel or an outside counsel to employees of an organization, which brief them on a legal situation and the need to hold materials for it.  As such, legal hold notices are typically considered both privileged attorney-client communications (because they are the communication of legal guidance) and protected attorney work product (because they reveal the attorney’s thinking about the matter). In addition to remembering to think about newer sources like mobile devices and social media and about the deliberately-expansive definition of “documents” used by the rules, you must remember that technology is constantly evolving. Until recently, auto-deleting messaging apps did not exist, and now, they are used by 56% of smartphone owners ages 18-29. Technology will continue to leap forward, and legal expectations will follow slowly behind.  You won’t be expected to consider a newer source, until one day you are.

Read More

Tools You Can Use for Legal Holds – Hold On Series, Part 6

In this segment we discuss the tools you can use for legal hold activities. The first and simplest tool available for legal holds is, of course, paper. For medium or large organizations, it is now common to create and use electronic forms rather than just paper or emails. Today, there are also a variety of purpose-built tools specifically for creating, distributing, and managing legal holds. There are more than a dozen offerings of this type in the marketplace, and more are sure to appear as the industry continues to grow. Read here to learn how and when to use each most efficiently, as well as descriptions of five leading solutions to orient you to the range of options available.

Read More

More Legal Hold Processes and Policies – Hold On Series, Part 5

Another activity for which a repeatable process is essential is the identification of the appropriate hold recipients. Even a timely and well-written hold will not be effective if it does not reach everyone it needs to reach.  So, who does it need to reach? Does it need to go to the entire company? To a particular department? To specific individuals? What about executive management? Who is responsible for relevant enterprise information systems? Are there outside, third-party recipients that need to be added too? Read on to learn how to approach and answer these questions.

Read More

Legal Hold Processes and Policies – Hold On Series, Part 4

We have already discussed the potential range of triggering events for the duty to preserve, but what happens when one occurs?  How does word filter to the appropriate individual?  Who is the individual responsible for taking action?  What actions do they take to initiate the process?  Are the initial steps internal, or executed with outside counsel?  On what timeline do they act? The next activity that can benefit greatly from a standardized process and a documented policy is the drafting of the hold to be issued.  Once the responsible individual has identified a triggering event and started down the road to hold issuance, who will actually be responsible for drafting?  Who will contribute to the legal substance?  Who will address technical questions about subject source types or affected enterprise systems?  Who will address any cross-border concerns? Read here to learn how to approach and answer these hold initiation and hold drafting questions.

Read More

What Should Be in the Hold? – Hold On Series, Part 3

Formal, written legal holds became the focus of much attention in eDiscovery after the Zubulake V ruling in 2004, in which a party was sanctioned for failing to issue a hold or take other necessary steps to ensure the preservation of relevant materials. Despite the allowances for such circumstances, the issuance of a written legal hold (whether in paper or via email) is still considered best practice and the standard first step in any preservation process.  Those legal holds can take a variety of forms and include a variety of optional content.  At root, though, all written legal holds need to contain five essential elements. 
In addition to the essential elements, there are a variety of optional elements you can include to accomplish more with the distribution of your legal hold. Read specific explanations of each of the elements here and learn about the three most commonly included additions.

Read More

What Must You Preserve, and When? – Hold On Series, Part 2

The duty of preservation is a foundational concept in our legal system that grows out of the common law concept of spoliation, which is more than 200 years old: if courts exist to make determinations about disputed facts, and if the trier of fact must make those determinations using the available evidence, then no litigant should be allowed to gain advantage in those determinations by destroying relevant evidence before the trier of fact can consider it. Although this common law duty of preservation is not directly codified in the Federal Rules of Civil Procedure, it is dictated by implication in Rule 26, Rule 34, and Rule 45.  Together, these three rules define the potential scope of discovery for litigants and third parties, and anything the rules may require you to produce is, inherently, something you need to preserve. So, what is the scope defined by those rules?

Read More

A Legal Hold Is Just a Letter, What Could Go Wrong? – Hold On Series, Part 1

It’s true that “legal holds do not preserve data” themselves, but they are the critical first step in the preservation process, ensuring that materials survive in situ long enough for you and your team to go get them. Today’s challenges include diversifying sources and source types (e.g., mobile devices, social media), evolving custodian behavior (e.g., personal cloud storage, messaging apps), and ever-increasing expectations (e.g., duties of competence extended to technology, new sources treated like old ones by judges). Read on to review how to meet those challenges and achieve effective, consistent, and well-documented legal holds for your organization.

Read More

Hey…You…Get Off of That Cloud

Managing and storing data in the cloud can be the most cost-effective solution for many; however, serious due diligence is required to ensure that all data is protected and to guarantee eDiscovery best practices.

Read More

The Importance of eDiscovery Education

Beyond the threat of malpractice, attorneys are required to abide by the ethical expectations of competence when handling eDiscovery. To maintain the knowledge and skill required for competent representation, attorneys must pursue continuing legal education in their practice and in eDiscovery.

Read More

Restoring Proportionality in the Age of E-Discovery: The Past, Present and Future of Proportionality and FRCP 26(b)

The e-discovery world has been buzzing over the proposed amendments to the FRCP, with revisions to Rule 26(b) placing the concept of proportionality front and center in defining the scope of the discovery process.

Read More

The Rule 26(f) Meet & Confer – It’s more than a formality

Attorneys often ask, “What do I need to know about eDiscovery?” They don’t realize that it’s more important to prepare for eDiscovery than to worry about what you don’t understand.

Read More

Whether you prefer email, text or carrier pigeons, we’re always available.

Discovery starts with listening.

(877) 545-XACT / or / Complete Contact Form