While litigation is inherently adversarial, counsel and litigants would be well-served to recognize that “zealous advocacy” and cooperation need not be mutually exclusive, especially in cases with significant amounts of electronically stored information (ESI). A recent decision from the District Court for the Eastern District of New York illustrates the risk a party and/or counsel takes in refusing to engage in the meet and confer process. This decision also reaffirms the fact that, when parties are working on crafting ESI search terms, it is the parties, not the court, who are in the best position to resolve such discovery disputes through the meet and confer process required under FRCP 26. Cooperation during the discovery process is not only economical in avoiding potential costly disputes, but also required by the Federal Rules of Civil Procedure. In particular, Rule 1 instructs the parties must help the court to “secure the just, speedy, and inexpensive determination of every action and proceeding.” To effectuate that goal, Rule 26(f) requires cooperation by the parties in formulating a discovery plan and meaningfully meeting and conferring in the event a discovery dispute arises. In the event the parties fail to cooperate, Rule 37 provides the court the ability to sanction a party for failing “to cooperate in discovery.” Additionally, many times, the...
Tagged: Search Methodology
The Need for Counsel to Maintain Active Involvement in Discovery: California District Court Sanctions Attorney for Failing to Make “Reasonable Inquiry” as Required by Fed. Rule 26(g)
On June 1, 2020, the District Court for the Northern District of California in Optronic Techs., Inc. v. Ningbo Sunny Elec. Co., issued a strong reminder to counsel: act in accordance with the obligation to manage and oversee the collection of discovery, or risk running afoul of the attorney certification obligations of Federal Rules of Civil Procedure 26(g). In this case, defendant’s attorney signed a certification pursuant to Rule 26(g) as to the completeness of defendant’s responses to discovery requests despite being unaware of what defendant actually did to search for responsive documents. The District Court found the lack of involvement by defendant’s attorney to be worthy of sanctions based on the specific circumstances of the case. Plaintiff sought sanctions concerning defendant’s responses to its post-judgement document requests in a litigation in which defendant had previously been found to have deliberately withheld documents, contradicting certain representations made to the court. Plaintiff did not seek sanctions pursuant to Rule 37 and/or the court’s inherent authority. Plaintiff claimed, among other issues, that defendant’s production was not complete and that defendant’s counsel “had not taken a sufficiently active role” in supervising the collection and production of documents. In response, defendant admitted that its counsel did not personally collect the documents, and instead provided “guidance” on what should be...
Raising the Specter of Discovery Abuse: The Importance of Developing a Discovery Record Before Filing a Motion to Compel
Two recent decisions highlight the importance of establishing a record of discovery abuse before filing a motion to compel based upon the commonly held suspicion that a responding party is withholding information and/or has failed to adequately preserve or search for information. Even in situations where a party is convinced that an adversary has failed to produce discoverable information, a litigant will face an uphill climb in pursuing a motion to compel in the absence of concrete evidence as to an adversary’s discovery shortfalls, including evidence of data deletion, untimely or absent preservation efforts, and/or the failure to produce information produced by other parties or third-parties that clearly should be in the possession of the responding party. Winn-Dixie Stores, Inc. v. Eastern Mushroom Marketing Cooperative (E.D. Pa.) In a recent decision from the Eastern District of Pennsylvania, Judge Schiller denied plaintiffs’ motion to compel in a case where plaintiffs insisted that “there simply must be responsive documents,” but plaintiffs were unable to provide any specific evidence to support their speculation. In this antitrust litigation involving allegations that defendants colluded to raise the price of fresh agarics mushrooms, plaintiffs sought all documents from defendants regarding the sale of mushrooms to plaintiffs. In particular, numerous discovery disputes ensued after the court entered an order requiring defendants to...
On July 19, 2018, the Chief Administrative Judge of the Courts issued an administrative order adopting a new rule for the New York Commercial Division supporting the use of technology-assisted document review. Based on a recommendation and proposal by the Subcommittee on Procedural Rules to Promote Efficient Case Resolution, Commercial Division Rule 11-e has been amended to state: The parties are encouraged to use the most efficient means to review documents, including electronically stored information (“ESI”), that is consistent with the parties’ disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case. Such means may include technology-assisted review, including predictive coding, in appropriate cases. The parties are encouraged to confer, at the outset of discovery and as needed throughout the discovery period, about technology-assisted review mechanisms they intend to use in document review and production. The Subcommittee noted that document review “consumes an average of 73% of the total cost of document production in cases involving electronic discovery.” With that in mind, the Court adopted a rule meant to streamline and make electronic discovery more efficient in large, complex and e-discovery-intensive cases. The use of technology-assisted review is still optional. It should be considered on a case-by-case basis and the parties are encouraged to confer about its potential use....
E-Discovery Year-in-Review 2014: Panel at Gibbons Eighth Annual E-Discovery Conference Discusses Recent Developments, Issues, and Trends
On December 5, 2014, Gibbons hosted its Eighth Annual E-Discovery Conference. The day’s first session discussed the year’s significant developments and featured panelists Michael Arkfeld, Principal at Arkfeld & Associates, and two Gibbons E-Discovery Task Force members; Director Jennifer Hradil and Associate Michael Landis.
Litigants who fail to meet e-discovery obligations run the risk not only of being sanctioned, but also of being subject to a court order compelling them to retain an e-discovery vendor. While the use of e-discovery vendors is becoming a common practice, it may add considerable expense to the already costly discovery phase of litigation. Additionally, compelled retention of a vendor may reduce litigants’ control over their own document production.
Reeling in Fishing Expeditions: Proposed Amendments to the Federal Rules Are Aimed at Narrowing the Scope of Discovery and Increasing Judicial Management
Litigants frustrated by endless discovery and skyrocketing costs may find solace in knowing that change may be on the way. Proposed amendments to the Federal Rules of Civil Procedure, as well as recent case law, signal efforts to narrow the scope of permissible discovery and increase judicial management of issues that arise. The proposed amendments — guided by the overarching goal of the just, speedy, and inexpensive determination of every action embodied in Federal Rule of Civil Procedure 1– are aimed at reeling in so-called “fishing expeditions” in which litigants attempt to use discovery to uncover additional causes of action not previously known, or, more nefariously, foist undue cost and burden on their adversary in the hopes of gaining a strategic advantage.
Show Your Work: Google Ordered to Produce Search Terms and Custodians Used When Responding to Apple’s Subpoena
In a recent order in Apple Inc. v. Samsung Electronics Co. Ltd., et al., United States Magistrate Judge Paul S. Grewal reinforced the importance of cooperation and transparency in the discovery process, especially when it involves electronically stored information. The order granted Apple’s motion to compel Google, a non-party, to produce the search terms and list of custodians Google used when responding to Apple’s subpoena. Judge Grewal’s order is significant because it underscores that a responding party, whether or not a party to the litigation, should be prepared to disclose the methodology it used to identify and collect electronically stored information in response to a discovery request.
“Trust me, I know what I’m doing!” – Court Outlines Perils of Custodian Self-Collection and Inadequate Keyword Searches
In a recent ruling, United States Southern District Judge and e-discovery authority Shira Scheindlin, of Zubulake and Pension Committee fame, held that various government agencies had failed to adequately design searches for responsive electronically-stored information. While the case, National Day Laborer Org. Network et al. v. U.S. Immigration and Customs Enforcement Agency, et al., 2012 U.S. Dist. LEXIS 97863 (S.D.N.Y. July 13, 2012), deals largely with searches in the context of the Freedom of Information Act (“FOIA”), Judge Scheindlin noted “much of the logic behind . . . e-discovery searches is instructive in the FOIA search context because it educates litigants and the courts about the types of searches that are or are not likely to uncover all responsive documents.”
Knockout Punch: Claims of Futility & Computer Crashes Not Enough to Prevent Key Word Searches Requested by Former Champ
Sports. Steroids. E-Discovery? Former middleweight champion Shane Mosley asserted claims of defamation against defendant Victor Conte, owner of Bay Area Laboratory Cooperative (BALCO), regarding Conte’s statements that Mosely allegedly used illegal steroids in his championship bout with Oscar De La Hoya. Mosely requested that a computer forensics expert be permitted to conduct key word searches on defendant’s computer hard drives and equipment. Defendant objected, claiming that all relevant documents had been disclosed and that a computer search would be futile. The New York Supreme Court disagreed. Mosley v. Conte, No. 110623/2008, 2010 N.Y. Misc. (Sup. Ct. New York Co. Aug. 17, 2010).