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Can Emails Constitute a Special Class of Privileged eDiscovery?
Every lawyer must have a fundamental understanding of the attorney-client privilege and the work-product doctrine. This understanding can become muddied in the world of electronically stored information (ESI) and emails. A pertinent question is whether or not privilege would attach to any email that is sent to counsel? What if
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Is Video Surveillance Discoverable ESI or Privileged Work-Product?
We know that many stores employ video surveillance systems, and that the records would fall into the category of electronic storage information. A more complex question looks towards whether video surveillance, as ESI, can be considered protected work product. The court took up this issue in Sowell v. TARGET CORPORATION,
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Are Spoliation Sanctions Warranted if Discovery is Ultimately Received?
What is the proper ruling on sanctions when withheld evidence is eventually tendered in response to plaintiff electronic discovery requests? Further, could a spoliation ruling be maintained at that point? This is an issue that the court reviewed in Viking Industrial Security, Inc., et al., v. Liberty Mutual Insurance Co.,
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Does Plaintiff Have “First Review” of Electronic Data Collected by an Independent Expert?
Our last post discussed the issue of third-party subpoenas sent to Plaintiff’s prospective and current employers in Zeller v. South Central Emergency Medical Services, Inc., Civil Action No. 1:13-CV-2584 (M.D. Penn. May 20, 2014). The court denied issuing a protective order to stop the subpoenas, but did allow Plaintiff 30
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Production of Defendant Flash Drives Ordered for Expedited Discovery for Injunction
Should flash drives be produced by Defendant during expedited discovery for a preliminary injunction? If so, who should pay for it? Such were the issues in an Order regarding a Motion to Compel in Network Cargo Systems, U.S.A. v. Pappas, No. 13 C 9171 (N.D.Ill. May 7, 2014). Plaintiff was
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Plaintiff ESI and Metadata at Issue in Sprint v. Comcast, et al.
Sprint Communications, L.P. v. Comcast, et al., Case Nos. 11-2684-JWL, 11-2686-JWL (D.Kansas May 6, 2014) involved consolidated actions regarding allegations of patent infringement by multiple defendants. Comcast alleged Sprint refused to collect and produce data from 63 custodians without proper objections or privilege assertions. Sprint argued that asking for data
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Search Terms and Email Threads: When is a Request Overbroad?
McNabb v. City of Overland Park, Case No. 12-CV-2331 CM/TJJ (D. Kans. April 16, 2014) is an employment discrimination case alleging sexual harassment, hostile work environment and retaliation. Plaintiff electronic discovery requests were answered, and Defendant agreed to produce five categories of email threads, which basically encompassed all emails to
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What Constitutes “Frivolous” Discovery Objections by a Defendant?
Objecting to plaintiff electronic discovery requests is not uncommon, but when is an objection frivolous or done in bad faith? For an example of this, see Chapman v. Hiland Operating, LLC, Case No. 1:13-cv-052(D. North Dakota April 16, 2014). In their response to plaintiff eDiscovery requests, Defendants included both “General
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What is “Inaccessible” ESI and How Does it Affect Costs?
The basics definition of inaccessible ESI (electronically stored information) is data that must be restored, de-fragmented or reconstructed for production. This affects the costs for electronic discovery as cost-shifting becomes a possibility only if the party first establishes the ESI is inaccessible. In Cochran v. Caldera Medical, Inc., Civil Action
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Is an Adverse Inference Instruction Appropriate for Destroyed Video?
EEOC v. Suntrust Bank, Case No. 8:12-cv-1325-T-33MAP(M.D.Fla. April 7, 2014) is a sexual harassment case where video surveillance is relevant to Plaintiff EEOC’s claims on behalf of multiple women. Defendant had a policy to keep video surveillance for 90 days and then delete or tape over the footage unless litigation