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Should Parties Tender Back-Up Tapes Without a Privilege Review?
In the consolidated case Dynamo v. Commissioner of Internal Review and Beekman v. Commissioner of Internal Review, Docket Nos. 2685-11, 8393-12 (US Tax Ct. Sept. 17, 2014), the Commissioner (Respondent) requested production of the electronically stored information (ESI) on two specific backup storage tapes – or the tapes themselves –
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Can You Amend a Pleading to Allege eDiscovery Abuses?
In Amusement Industry, Inc. v. Moses Stern No. 07 Civ. 11586 (LAK)(GWG)(S.D.N.Y. Sept. 10, 2014), Plaintiff motioned after the close of discovery to amend its pleading to add a state law claim of “deceit.” The motion alleged Defendant wrongfully omitted key emails from the defense production and improperly and misleadingly
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Is One Missing Email Enough to Extend Discovery After Three Years?
In Sun Products Corporation v. Lock & Load Industries LLC, Case No. 2:11-cv-316-CW-PMW, D. Utah Central Div. Sept. 11, 2014, Sun Products (Plaintiff) sued the Defendant, alleging that Defendant sold Plaintiff an antibacterial drug which failed to meet certain specifications. In December 2011, a Plaintiff custodian was deposed and asked
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Must a Party Provide Metadata When the Info is on the Face of the Document?
In Melian Labs Inc. v. Triology LLC, Case No. 13-cv-04791-SBA (KAW), N.D.Cal September 4, 2014, the parties entered into a discovery agreement pursuant to Fed.R.Civ.Pro. 26(f). The agreement stated metadata need only be provided as part of the ESI to show the following fields: Dates sent and received Times sent and
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Could Deleted Instant Messages (IMs) be a Basis for Spoliation?
Any form of electronic data that is relevant to a claim or defense is discoverable evidence; therefore, instant messages (also called IMs) can certainly be the basis of a spoliation allegation if they are deleted after a duty to preserve evidence is in place. Broadspring, Inc. v. Congoo, LLC, No.
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Court Sides with Plaintiff in Search Term Dispute of Electronic Data
Most Agreed Orders regarding electronically stored information (ESI) state that the parties shall agree upon search terms to produce relevant data. However, obtaining an agreement on search terms is sometimes easier said than done in contentious litigation. In The Shaw Group Inc. v. Zurich American Insurance Company, et al., Civil
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Does Failure to Issue a Litigation Hold Mean a Breach of the Duty to Not Suppress Evidence?
This week our blog has been reviewing the California Bar Association’s Formal Interim Opinion No. 11-0004. The last two posts reviewed the hypothetical scenario of an attorney who was not well-versed in ESI litigation and failed to consult with an electronic evidence expert. As a result, the attorney breached his
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California Bar Issues Formal Opinion RE: ESI and Duty of Confidentiality
In our last post, we reviewed the California Bar Association’s Formal Interim Opinion No. 11-0004, concerning the ethical duties surrounding the handling of electronically stored information (ESI). We reviewed the hypothetical scenario and went over why the attorney breached the duty of competence when he made several mistakes regarding litigation
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Does a Plaintiff Attorney Have an Ethical Duty to Understand ESI In California?
The California Bar Association recently released Formal Interim Opinion No. 11-0004, regarding an attorney’s ethical duties in the handling of discovery of electronically stored information (ESI). The Opinion offered a hypothetical example of an attorney who was unfamiliar with ESI. When it became apparent that electronic discovery would be sought
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Is Testimony Concerning Improper Redactions a Sufficient Remedy in Discovery?
Redactions have become a point of contention in litigation, as leaving sensitive information or removing too much can lead to negative consequences for both counsel and clients alike. In Donna Craig v. Bridges Bros. Trucking LLC, et al., Case No. 2:12-cv-954 (S.D. Ohio August 1, 2014), the court answered the