Post Process

Everything to do with E-discovery & ESI

Archive for October 1st, 2007

Advancing past keywords

Posted by rjbiii on October 1, 2007

Key word searches are elementary. Perhaps too elementary, according to Law Technology Today, who posts an article praising the benefits of concept search and content analysis, techniques that are sorely under-utilized in today’s discovery projects.

Without endorsement by the legal community, litigation teams have been understandably reluctant to adopt concept searching and data analytics in their discovery strategies. Beyond the normal fear of the unknown, attorneys and those who support them have articulated concerns that this new technology may not be defensible. If attorneys were eliminated from the process there would be unacceptable risk. They’ve also expressed fear and disdain for what they consider to be “black box” technology.

In fact, when concept search and content analysis are done properly, [certain attendant] concerns should go away.

We’ll see more and more articles in the legal media about this and similar issues. Searching technology and techniques are part of the reason that, handled correctly, dealing with ESI is actually preferrable than dealing with paper.

[HT: Information Governance Engagement Area]

Posted in Articles, Search Engine Technology, Trends | Tagged: | Leave a Comment »

Case Blurb: Seroquel; Federal Court’s authority to impose sanctions under FRCP 37

Posted by rjbiii on October 1, 2007

Pursuant to Federal Rule of Civil Procedure 37, the Court may impose broad sanctions for discovery-related abuses. Federal Rule of Civil Procedure 37 governs a party’s failure to make a proper disclosure or cooperate in discovery. For purposes of Rule 37, an incomplete response is to be treated as a failure to respond. Fed. R. Civ. P. 37(a)(3). Rule 37(b)(2) states that a court may grant sanctions against a party that “fails to obey an order to provide or permit discovery.”

Sanctions may be granted against a party under Rule 37(b)(2) if there is noncompliance with a court order, notwithstanding a lack of wilfulness or bad faith, although such factors “are relevant … to the sanction to be imposed for the failure.” 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2283, at 608 (2d ed.1994); see Melendez v. Ill. Bell Tel. Co., 79 F.3d 661, 671 (7th Cir.1996) (“Bad faith … is not required for a district court to sanction a party for discovery abuses. Sanctions are proper upon a finding of wilfulness, bad faith, or fault on the part of the noncomplying litigant.”); Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 78, 88 (D.D.C.1998) ( “In making the determination of whether to impose sanctions, Rule 37(b)(2) does not require a showing of willfulness or bad faith as a prerequisite to the imposition of sanctions upon a party.” (citations omitted)).

The district court has broad discretion to fashion appropriate sanctions for the violation of discovery orders. United States v. Certain Real Property Located at Route 1, 126 F.3d 1314, 1317 (11th Cir.1997); see also Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976)); Friends of Animals, Inc. v. U.S. Surgical Corp., 131 F.3d 332, 334 (2d Cir.1997) (“A district court has broad power to impose Rule 37(b) sanctions in response to abusive litigation practices.”).

Posted in 11th Circuit, Case Blurbs, FRCP 37, M.D. Fla., Magistrate Judge David A. Baker, Sanctions | Tagged: | Leave a Comment »

Case Blurb: Seroquel; Reason to encourage parties to exchange Evidence in digital form

Posted by rjbiii on October 1, 2007

The goal is to maximize these potential advantages [of digital evidence, such as searchability] while minimizing the potential problems of incompatibility among various computer systems, programs, and data, and minimizing problems with intrusiveness, data integrity, and information overload.
(emphasis in the original)

In re SEROQUEL PRODUCTS LIABILITY LITIGATION, 2007 WL 2412946 (M.D. Fla. July 3, 2007).

Posted in 11th Circuit, Case Blurbs, Discovery Requests, Form of Production, M.D. Fla., Magistrate Judge David A. Baker | Tagged: | Leave a Comment »