If a defense production is tendered as electronic data in PDF form, non-searchable and without metadata, does it meet the discovery requirements of Fed.R.Civ. Pro. 34? Or do plaintiffs have grounds to object and request an order of court compelling the production in native file format? This question is but one issue at hand in
native file
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- October 23, 2013
Litigation Involving Native Files and Metadata
Courts Support Plaintiff eDiscovery Requests; Require Increased Defendant Data Production Modern discovery presents technological challenges to every litigator, and emerging ethical rules make clear that it is every attorney’s duty to understand electronic discovery. What is a native file? What is metadata? How does metadata compare to TIFF and PDF productions, and why is metadata
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- October 7, 2013
Court Considers Objection Waivers for Inadequate Response to Plaintiff ESI Requests
In Westdale Recap Properties, Ltd. et al. v. NP/I&G Wakefield Commons, LLC et al., No. 5:11-CV-659-D (E.D.N.C. September 26, 2013), plaintiff was a shopping mall tenant who sued the defendant property manager for fraud and unfair and deceptive practices, among other claims. After exchanging agreed-upon ESI protocols, the defendants moved for a time extension. In
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- August 28, 2013
Does the Destruction of Metadata Necessarily Prejudice Plaintiffs?
Our last blog reviewed the legal standard for spoliation of electronically stored evidence in a district court case within the 10th Circuit. In Herrmann v. Rain Link, Inc., Case No. 11-1123-RDR (D. Kan. July 19, 2013), the court ultimately held that although the defendants failed to preserve ESI, this was merely negligent and plaintiffs failed
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- August 19, 2013
Class Action Attorney Requests $24 Million in Fees but Deleted Electronic Data…What is a Court to Do?
In an order handed down August 7, 2013, a California Court of Appeals considered a class action attorney fee request of $24 million. The case is Ellis v. Toshiba, Nos. B220286, B227078 (Cal. Ct. App. 2013), and it has a very long history. The basic issue on appeal is whether attorney Lori J. Sklar is
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- July 19, 2013
QK Healthcare and the Examination of Electronic Evidence Spoliation
In our last blog, we discussed the recent interim opinion in QK Healthcare, Inc. v. Forest Laboratories, Index No. 117407/09 (May 13, 2013). The court noted that electronic data in civil litigation necessitates a new standard that is different from the traditional rules about spoliation of evidence. In finding that spoliation did occur in this
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- July 17, 2013
Computer Crashes Raise Questions of eDiscovery and Electronic Data Spoliation
Prior to the onset of electronic data saved in native file format, paper documentation in large banker boxes ruled the discovery process for physical evidence. This has completely changed in the last 10 to 15 years, as electronic files in native format are now commonly requested and produced in civil litigation. This presents a slew
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- July 15, 2013
Does Production of Hard Copies Negate the Need for Native Files?
What happens when you have lost electronic files and a destroyed computer, but you contend your document production was completed before the computer was discarded? To see how that argument went over in a New York appellate court, check out Harry Weiss, Inc. v. Mendez Moskowitz et al., 2013 NY Slip Op 038927 (May 30,
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