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Archive for the ‘Discovery’ Category

E-Discovery Issue of Law Review Coming Out

Posted by rjbiii on July 27, 2009

In February, I attended, and spoke at, an E-Discovery Symposium in Covington, KY (just across the way from Cincinnati) hosted by Salmon P. Chase Law School at Northern Kentucky University. Panelists included Professors Debra Lyn Basset (U. of Alabama) and Stephen Gensler (U. of Oklahoma) and Steven Bennett of Jones Day.

Well, now the school is publishing a companion issue of the law review, and it is completely dedicated to electronic discovery (no electronic link available yet…the law review site still has the previous issue’s information posted). Table of contents for the issue:


  • Jennifer Anglim Kreder (Prof. Chase School of Law) and Bryce C. Rhoades (JD candidate, Chase School of Law) write…Introduction: Navigating the Changing Ethical and Practical Expectations for E-Discovery.
  • Steven C. Bennett (Jones Day) writes…The Ethics of Legal Outsourcing.
  • Roland Bernier (your dedicated blogger!) writes…Avoiding the E-Discovery Odyssey.
  • Stephen S. Gensler (Prof. U. Oklahoma School of Law) writes…Some Thougts on the Lawyer’s E-volving Duties in Discovery.


  • Robert E. Altman & Benjamin Lewis (JD Candidates, Chase School of Law) write…Cost-Shifting in ESI Discovery Disputes: A Five Factor Test to Promote Consistency and Set Party Expectations.
  • Emily N. Litzinger (JD Candidate, Chase School of Law) writes…The Ethical Dilemma of Scrubbing Metadata: The Pathway to a Better Approach.
  • Christine M. Steimle (JD Candidate, Chase School of Law) writes…The Decision to Compel Unrestricted Foreign Imaging: A Note Discussing John B. v. Goetz.

Purchases may be made by going to this page and following the instructions.

Posted in Articles, Discovery | Tagged: , | Leave a Comment »

Case Blurb: Asher Assocs LLC, Purpose of Discovery Procedures

Posted by rjbiii on July 12, 2009

Discovery procedures set forth in the Federal Rules of Civil Procedure seek to further the interests of justice by minimizing surprise at trial and ensuring wide-ranging discovery of information. To that end, Rule 26(b) permits discovery “regarding any matter . . . that is relevant to the claim or defense of any party” or discovery of any information that “appears reasonably calculated to lead to the discovery of admissible evidence.”

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *15 (D. Colo. May 12, 2009)(internal citations removed).

Posted in 10th Circuit, Case Blurbs, D. Colo., Discovery, FRCP 26(b), Magistrate Judge Craig B. Schafer | Leave a Comment »

EU Working Group Releases Proposal for Reconciling EU Data Privacy Laws with US Discovery Rules

Posted by rjbiii on February 22, 2009

An EU “working group” has released a proposed set of guidelines (warning: PDF document) for companies who are subject to EU Privacy Directives to follow when complying with discovery rules in U.S. matters. The document’s purpose is described thusly:

The working party sees the need for reconciling the requirements of the US litigation rules and the EU data protection provisions. It acknowledges that the Directive does not prevent transfers for litigation purposes and that there are often conflicting demands on companies carrying on international business in the different jurisdictions with the company feeling obliged to transfer the information required in the foreign litigation process. However where
data controllers seek to transfer personal data for litigation purposes there must be compliance with certain data protection requirements. In order to reconcile the data protection obligations
with the requirements of the foreign litigation, the Working Party proposes the following guidelines for EU data controllers.

The document is an excellent primer for EU-US cross-border discovery matters. It also discusses the differences in discovery between common law and civil code systems, and those of the U.S. with other common law nations.

Posted in Discovery, European Union, International Issues, Legislation, Privacy | Leave a Comment »

Complaints over E-discovery Costs Intensify

Posted by rjbiii on September 15, 2008

I have recently read two separate articles discussing the need to “fix” the current system, with respect to e-discovery. The Economist, has posted an article that concludes that the U.S. is “way behind” other countries’ civil systems because of Judges’ inability to control the scope of discovery. The situation, according to the article, has led to the need for experts who “merrily” charge large sums of money for their assistance:

This has led to a new boom industry of specialised e-discovery service providers which merrily charge $125-600 an hour. George Socha, a consultant, estimates that their annual revenues have grown from $40m in 1999 to about $2 billion in 2006 and may hit $4 billion next year.

Interestingly, the article begins with an example of a plaintiff involved in a lawsuit with an HMO, who has been “daunted” by the scope of e-discovery. Again, it is not the HMO complaining…it is the plaintiff, a teen-aged girl complaining about decisions made by an HMO. Evidently, the defendant requested production of “practically everything the teenagers had said on their Facebook and MySpace profiles, in instant-messaging threads, text messages, e-mails, blog posts and whatever else the girls might have done online”

The article mentions that the attorney objected on grounds of privacy, and lost. One would also hope that relevance and undue burden might also have been broached. Because the plaintiff’s psychological state is an issue, I suppose relevance can construed rather broadly to almost any communication she generates, but nevertheless, one would think that the Judge could use discretion to curtail any “fishing expedition.” One of the articles biggest complaints is that Judges don’t use their discretion to manage the scope of discovery. One wonders, though, how educated counsel is on the principles and laws of ESI. It has been my observation that plaintiffs firm are behind the learning curve. Another interesting point is the placement of this case at the front of the story. Most of the complaints I’ve heard come from the corporate side, claiming that plaintiff’s are using the costs of EDD against them to encourage settlements. While I love The Economist, it is certainly a business-friendly publication. It does go on to extensively discuss the issues that corporations are having in the new environment.

A related article comes from the ABA, wherein trial lawyers call e-discovery a “morass” (registration may be required):

The civil justice system in the United States is so bogged down in a “morass” of e-discovery that it is often too expensive for litigants to take their cases to trial, according to a survey of trial lawyers.

Now the next step is to fix this increasingly dysfunctional system, according to a press release (PDF) about an interim report (reg. req.) on the survey, which is a joint project of the American College of Trial Lawyers and the University of Denver’s Institute for the Advancement of the American Legal System (IAALS).

Among the key findings of the survey: Judges don’t use sufficient discretion to “control excessive discovery.” The bottom line from the survey:

“Discovery is out of control. Attorneys know it; judges know it; and clients know it. E-discovery just makes it more obvious,” [former Colorado Supreme Court Justice Rebecca Love Kourlis] writes. “We have to figure out a way to fix it.

I think that part of the problem here is that attorneys and judges, who work in an industry designed to be ponderous, now find themselves in a new world. And most of them don’t like it. Again, in theory, digital evidence is easier to deal with. Why? Well, compare the using a search interface with the manual process of hunting through boxes, squinting at index sheets, and and working your way through mountains of paper in hot warehouses. Which sounds like a better system?

So while we can discuss the need to prevent fishing expeditions, or parties’ use of discovery as leverage to prop up weak cases, we need to also understand that we are in the early part of this new age; a time of transition. This will get easier.

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ABA Journal Looks at Judges who are E-Discovery ‘Rock Stars’

Posted by rjbiii on July 6, 2008

The most recent edition of the ABA Journal looks at a group of Judges who have provided guidance to the nation’s courts with respect to the ever-evolving law of E-Discovery:

“The law of e-discovery has largely been driven by a handful of federal judges who realized early on [that] electronic evidence was going to be a big issue in their courtrooms,” [E-Discovery consultant Mary Mark of Fios] says. “Fortunately, some of them have tackled it aggressively and have given guidance to a lot of other courts and judges.”

When new amendments to the Fed­eral Rules of Civil Procedure for handling electronically stored information went into effect on Dec. 1, 2007, dis­covery was supposed to become easier to manage. Before the new rules were put in place, it was left up to judges to rule on how to handle digital evidence in court—a problem so thorny it often took hundreds of pages in opinions to sort it out.

But even with the new rules, many massive opinions continue to be written on the e-discovery issue. And jurists like [David] Waxse, whom Mack describes as one of the more colorful judges around, are gathering an intense following.

The article spotlights Judges Waxse, Shira Scheindlin, John Facciola, Paul Grimm and Rudi Brewster.

Posted in Articles, Discovery, Judge Rudi M. Brewster, Judge Shira A. Scheindlin, Magistrate Judge David J. Waxse, Magistrate Judge John M. Facciola, Magistrate Judge Paul W. Grimm, Trends | Tagged: , | Leave a Comment »

Blogging LegalTech West 2008: Building an e-discovery task force

Posted by rjbiii on June 28, 2008

As mentioned in the previous post, there were three main tracks of courses to choose from. My associates and I glanced over them to divide the subject matter up between us, and I ended up on the “Corporate Perspectives” track, which suited me.

What was less than satisfying was that the first event was a panel discussion centered on building an E-Discovery task force inside the company. Not a particularly interesting topic for me; not because it’s unimportant, but rather because I have already attended a number of similar presentations, read much of the literature on it, written about it in my own papers, and dealt with the subject extensively in my own work. So it’s “old hat” to me, as they say.

Nevertheless, a colleague of mine and I found good seats and settled in. The panel consisted of Kroll Ontrack’s Linda Sharp (who acted as moderator), Cynthia Nichols from Taco Bell Corp., Michael Kelleher of Folger Levin & Kahn LLP, and Joel Vogel o Paul, Hastings, Janofsky & Walker LLP.

Most of the information presented was standard, and no new ground was covered (at least for me), however, it was well-done and all panelists contributed significantly to the discussion. No new ground was covered, but in all likelihood, the needs of the target audience were met.

The meeting began with a discussion outlining the need for the proactive implementation of pre-litigation measures to deal with issues presented by in the era of “ESI.” With Ms. Sharp leading the way, it was noted that 50% of corporate America has no policiy with respect to managing ESI, and 75% feel they lose time due to inefficient or non-existent ESI policies.

The panel then turned to the question of what elements and constituencies should comprise an E-Discovery team? Depending upon the size and internal structure of the company, the panel listed the following possibilities:

  • Corporate Counsel
  • IT
  • Human Resources
  • Records Management
  • Corporate Security
  • Trial Counsel
  • Discovery Counsel
  • Outside Vendor(s)

Obviously, the nature of the matters that confront any particular corporation, and the relationship the company has with outside law firms and vendors are factors in building the right team.

The discussion then moved the task force’s need to educate themselves on their company’s data infrastructure. Questions the task force should address are: where does company data reside? How is it maintained? How is it accessed, and by whom? When (and how) is it destroyed? Here, some recommended that a systems information directory be generated and maintained by the team. Others argued maintaining the document was inefficient, and that this could best be addressed by updates as needed (i.e., as new legal matters arise). I tend to lean toward maintenance on a regular basis, although I can see some situations in which the contrary view would be a better fit.

The discussion then looked at Discovery Response Checklists, and what elements should constitute it. Some of these items included: the issuance of hold statements, discontinuing data destruction and back-up tape recycling policies; and handling e-mail archiving.

Overall, a fairly pedestrian, but useful presentation. The panelists were articulate and knowledgeable, and laid out the issues in an organized and effective manner. If you’re interested in the subject, and other ideas for proactive measures, one article that I liked on the issue is:., Renee T. Lawson, Taming the Beast—Implementation of Effective Best Practices for Electronic Data Discovery, 747 PLI/LIT 305, (Oct-Dec 2006).

Posted in Best Practices, Data Management, Discovery, Industry Events, Trends | Leave a Comment »

AL Case Blurb: Cooper Tire and Rubber; Supreme Court Discusses Standards for Appealing Trial Court Decisions on Discovery

Posted by rjbiii on June 21, 2008

Post Process-This is a Case Blurb from the State of Alabama, whose laws regarding discovery will differ from those of the Federal Courts.

A writ of mandamus can be issued to affect the trial court’s control of the discovery process, but this Court’s review of a petition seeking a writ in a discovery dispute is particularly stringent: “The law relating to the issuance of a writ of mandamus in a case involving a discovery dispute was recently set out in Ex parte Henry, 770 So. 2d 76 (Ala. 2000). In Ex parte Henry, this Court stated: “‘Rule 26 Ala. R. Civ. P., governs the discovery of information in civil actions. When a dispute arises over discovery matters, the resolution of the dispute is left to the sound discretion of the trial court. “Discovery matters are within the trial court’s sound discretion, and its ruling on those matters will not be reversed absent a showing of abuse of discretion and substantial harm to the appellant.” Wolff v. Colonial Bank, 612 So. 2d 1146, 1146 (Ala. 1992) (citations omitted); see also Ex parte Hicks, 727 So. 2d 23, 33 (Ala. 1998 ) (Maddox, J., dissenting).

“‘… The writ of mandamus is a drastic and extraordinary remedy, to be issued only when there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Horton, 711 So. 2d 979, 983 (Ala. 1998 ) (citing Ex parte United Serv. Stations, Inc., 628 So. 2d 501 (Ala. 1993)); Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991) (citing Martin v. Loeb & Co., 349 So. 2d 9 (Ala. 1977)). Moreover, this Court will not issue a writ of mandamus compelling a trial judge to alter a discovery order unless this Court “determines, based on all the facts that were before the trial court, that the trial court clearly abused its discretion.” Ex parte Horton, 711 So. 2d at 983. Moreover, “‘[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief,’ and ‘[t]he writ will not issue where the right in question is doubtful.'” Ex parte Bozeman, 420 So. 2d 89, 91 (Ala. 1982) (quoting Ex parte Dorsey Trailers, Inc., 397 So. 2d 98, 102 (Ala. 1981)).'”

Ex parte Pitts, 822 So. 2d 418, 421-22 (Ala. 2001). See also Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003)(holding that “mandamus will issue to reverse a trial court’s ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.”). The Court in Ocwen noted that “[i]n certain exceptional cases … review by appeal of a discovery order may be inadequate” and that among those exceptional cases were those in which “a discovery order compels the production of patently irrelevant or duplicative documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party ….” 872 So. 2d at 813. See also Ex parte Crawford Broad. Co., 904 So. 2d 221 (Ala. 2004). Moreover, we are also aware of HN8the fundamental disinclination of the appellate courts to intrude into the trial court’s province of conducting the litigation process. Appellate courts are fundamentally directed toward the review of an appeal after a case is concluded in the trial court, and they are not well equipped to manage the trial court’s business, particularly where the appellate caseload is more than sufficient to fully occupy the court’s time. This Court has long recognized the principle that “‘[c]ases should not be tried by piecemeal, and separate and distinct rulings upon the evidence brought to this court pending the progress of the trial ….'” Ex parte Alabama Power Co., 280 Ala. 586, 599, 196 So. 2d 702, 715 (1967)(quoting Ex parte Little, 205 Ala. 517, 517, 88 So. 645, 646 (1921)).

Ex parte Cooper Tire & Rubber Co., 2007 Ala. LEXIS 229 at *25-28 (Ala. Oct. 26, 2007)

Posted in AL Sup. Ct. Justice Sue Bell Cobb, Alabama, Case Blurbs-AL, Discovery, State Courts | Tagged: | Leave a Comment »

Microsoft Seeks Delay in Discovery Process on Vista Trial

Posted by rjbiii on March 10, 2008

From the Article in Computer World:

Microsoft Corp. on Friday asked that a lawsuit claiming it duped consumers in a Windows Vista marketing program be suspended while the company appeals a judge’s decision to grant the case class-action status.

If granted, the motion would also postpone any new disclosures of potentially embarrassing company e-mails. Last month, the release of similar documents showed that top-level company executives struggled with the new operating system on machines labeled “Vista Capable,” and that partners such as Dell Inc. warned Microsoft that the campaign would confuse consumers.

Microsoft is challenging two aspects of the case. First, they challenged the trial court’s decision basing class-action status on a Washington state law. They also questioned the court’s approval of plaintiff’s theory of harm, called “price inflation,” whereby Microsoft’s actions resulted in increased demand, and price, of systems running a basic version of Vista. Microsoft’s argument is basically that if their appeal is successful, all the expenses and disruptions associated with discovery are or naught.

[HT: Slashdot]

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E-discovery from a Canadian Perspective

Posted by rjbiii on December 17, 2007

The ALSP (Association for Litigation Support Professionals) has posted an interview with Canadian attorney, and legal technology expert, Martin Felsky, who, inter alia, discusses differences in electronic discovery processes between the U.S. and his country:

In Canada the issue of how much e-Discovery must be conducted is decided using a proportionality test that weighs the need for the electronic data compared to the costs and burdens of producing it in the context of the amounts in controversy and the issues in the case. Counsel tend to reduce the volume to be examined whereas in the US the attitude is more along the lines of we have to find and process virtually everything that might be relevant.

Mr. Felsky discusses his background, as well as other differences between the two legal systems…

[HT: Information Governance Engagement Area]

Posted in Articles, Discovery, International Issues | Tagged: , | Leave a Comment »

The EDD Hot Potato…lands at Counsel’s feet

Posted by rjbiii on December 16, 2007

We have blogged about the fact that many corporate law departments try laying the responsibility for Electronic Discovery projects at the feet of the IT staff. The post was partly motivated by this article. Yet, and we have mentioned this as well, case law indicates that it is up to the attorneys, and not the IT technicians, to properly manage the process. As Reed Smith’s Janet Kwaon and Karen Wan state in a new article, counsel delegates this responsibility at his or her own peril:

[I]n the current climate, given the interplay between ethical obligations and standards for professional conduct and these e-discovery requirements, attorneys may be surprised to learn that inattention to e-discovery may not only work to the detriment of clients — it may lead to professional malpractice or the imposition of sanctions on counsel.

In other words, pointing the finger at IT may not allow counsel to shift liability. And the problem is, there really is no easy fix:

The duty of a party to locate and produce all materials responsive to discovery and counsel’s oversight obligations are nothing new to the discovery process. What is new, brought on by the staggering volume of data and the complexities associated with their management, is the broad array of possible pitfalls and the ability to reveal mistakes and outright gamesmanship through the often inerasable trail of electronic evidence.

We have noted the complexities associated with electronic discovery before:

[E]lectronic discovery requires an understanding across several disciplines. Law, IT, records management, and compliance are some of those areas of knowledge from which any discovery team should draw. It is difficult for any one individual to have sufficient knowledge across all these areas, so communication between experts from these professions becomes important.

Furthermore, we have also advised readers that the selection of an EDD vendor is a critical point in any complex discovery project:

It is my view that the process used to select a vendor (or vendors) is one of those key points of time in the litigation, with respect to discovery. A thorough vetting of a vendor’s capabilities, technology, experience and reputation is essential to defending that decision in the future should the need arise.

So what can attorneys do to avoid some of the pitfalls of EDD that we have previously spotlighted? Well,

  • Take Discovery seriously. I mean it; stop laughing.
  • Learn the case law. Use our Case Bibliography as a starting point.
  • Understand the basic technical concepts (ask experts you hire, or plan to hire, about their methodologies).
  • Negotiate the 26(f) conference in good faith; and prepare for it as thoroughly as you would for a deposition, or hearing before the judge.
  • In-house counsel should learn the basics of their company’s IT infrastructure; outside counsel should assess both their own clients’ data enterprise, and that of the opposing party.
  • Hire EDD vendors and experts by thoroughly vetting the candidates. Remember, price is not everything.

Oh. One more thing. Read my blog!

Posted in Articles, Attorney Liability, Discovery, EDD Basics, Meet and Confer | Leave a Comment »