Tag Archives: electronic discovery

Toot! Toot! All Aboard the Baloney Train!

Hardly a week goes by without an insurance company, a big corporation, or one of their lobbying groups complaining about "the cost of litigation," usually prefacing the word "cost" with hyperbolic adjectives like "soaring" or "exploding," with the implication that, somehow, injured plaintiffs or their lawyers are to blame. Yet, whenever we see an actual example of a party engaging in absurd tactics to make litigation more costly and difficult, it always turns out that the defendant or their insurance company is to blame.  Although trial is typically the most expensive part of any case, the vast majority of cases ... Continue Reading

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Spoliation Law Across The Circuits: Magistrate Judge Paul Grimm’s New Magnum Opus

Via Electronic Discovery Law comes an opinion so thorough and helpful it's hard to believe you can get it for free. Magistrate Judge Paul W. Grimm of the District of Maryland has been writing about spoliation and evidentiary concerns for quite some time (see, e.g., Paul W. Grimm, Michael D. Berman, Conor R. Crowley, Leslie Wharton, Proportionality in the Post-Hoc Analysis of Pre-Litigation Preservation Decisions, 37 U. BALT. L. REV. 381, 388 (2008)), and was waiting for someone to pitch him a soft ball. He got one in Victor Stanley, Inc. v. Creative Pipe, Inc. No. MJG-06-2662 (D. Md. Sept. ... Continue Reading

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The Seventh Circuit’s First Report On Electronic Discovery and The Candor of Counsel

At Electronic Discovery Law: Last month, the Seventh Circuit’s Electronic Discovery Pilot Program Committee released its report on phase one of its Electronic Discovery Pilot Program.  Initiated as a “multi-year, multi-phase process to develop, implement, evaluate, and improve pretrial litigation procedures that would provide fairness and justice to all parties while seeking to reduce the cost and burden of electronic discovery consistent with Rule 1 of the Federal Rules of Civil Procedure”, the first phase of the program ended on May 1, 2010, after a seven month period in which the committee’s Principles Relating to the Discovery of Electronically Stored ... Continue Reading

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Why Are Taxpayers Criminally Investigating Shepard Fairey For Lying In A Civil Lawsuit?

Shepard Fairey, creator of the iconic "Hope" poster during Obama's Presidential campaign, is not perfect. After the Associated Press claimed that Fairey's use of one of their images for the poster required authorization, Fairey — represented by the Fair Use Project at Stanford University — pre-emptively sued to establish (by way of a declaratory judgment action) that his transformation of the original image constituted "fair use" and thus did not infringe on their copyright. Frankly, I thought he had a good case, but the suit hasn't gone well: last October, Fairey was forced to admit he spoliated and fabricated evidence: "Throughout ... Continue Reading

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“Zubulake Revisited” — Judge Scheindlin Holds Carelessness In Preserving Electronic Evidence Warrants Spoliation Sanctions

Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) is, as I wrote before, the Tale of Genji for electronic discovery. It is as widely-cited as all but the most prominent of Supreme Court opinions. Gregory P. Joseph brings us selections from Judge Scheindlin’s new magnum opus on the subject, Pension Comm. of Univ. of Montreal, 2010 U.S. Dist. LEXIS 4546 (S.D.N.Y. Jan. 15, 2010): In an era where vast amounts of electronic information is available for review, discovery in certain cases has become increasingly complex and expensive. Courts cannot and do not expect that any party can meet ... Continue Reading

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Grider v. Keystone Health: Will The Third Circuit Let Defense Lawyers Walk All Over The District Courts?

[UPDATE: In its ruling, the Third Circuit set forth the appropriate standard for sanctions and concluded the conduct was likely sanctionable, but refused to remand the case back to the District Court for further proceedings, thereby vacating the order while still criticizing the attorneys involved. The opinion is at Grider v. Keystone Health Plan Central, Inc., 580 F.3d 119 (3d Cir. 2009).] How Appealing points to this Shannon Duffy article in The Legal Intelligencer: Shockwaves reverberated through the civil defense bar in September 2007 when a federal judge imposed sanctions on several lawyers and their clients for engaging in discovery tactics ... Continue Reading

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Treasury Demands Banks Find Ways To Hide Luxury Spending

The Conglomerate catches a political bait-and-switch afoot in the TARP regulations: After the hullabaloo about the $440,000 AIG retreat in October 2008, and news in January of John Thain's $1.2 million office renovations, and the Citigroup plane fiasco, the luxury expenditures section of ARRA was inevitable.  The Act requires that the boards of TARP recipients adopt "a companywide policy regarding excessive or luxury expenditures ..." . . . Buried in Treasury's June 15 interim final rule on TARP Standards for Compensation and Corporate Governance is a requirement that the boards of TARP recipients by September 19th "adopt an excessive or luxury expenditures policy, provide this policy to Treasury and its primary ... Continue Reading

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E-Mail Snooping Under the Stored Communications Act; 4th Circuit Requires “Actual Damages” For Compensatory Damages, But Not For Punitive Damages or Attorney’s Fees

At The National Law Journal (via How Appealing): In a case stemming from an employer's theft of e-mails from the personal account of an employee who had sued him for sexual harassment, a panel of the 4th U.S. Circuit Court of Appeals recently became the first circuit to hold that plaintiffs must prove actual damages in order to be eligible for an award of statutory damages under the federal Stored Communications Act. But the unanimous panel, led by Chief Judge Karen Williams, also ruled that a showing of actual damages is not required for awards of punitive damages or attorney ... Continue Reading

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They Do The Mess Around: How A Third-Party Can Get Walloped For Contempt in Discovery

EDD Update discusses the D.C. Court of Appeals affirming a contempt order against the Office of Federal Housing Enterprise Oversight (“OFHEO”) in In re: Fannie Mae Securities Litigation, 2009 U.S. App. LEXIS 9 (D.C. App. Jan. 6, 2009): OFHEO handled the e-discovery very poorly, to put it mildly, and was held in contempt by the district court in Washington D.C. The agency had not complied with a prior order that their lawyers had consented to. Turns out the consent order allowed the requesting parties to specify any search terms they wanted, so they did. They specified 400 keyword terms which ... Continue Reading

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Does A Company Have To Have A Document Retention Policy? Apple Doesn’t Have One.

Slashdot led me to this erroneous article at The Industry Standard: According to a recent legal filing (see page 7) in the Psystar vs Apple antitrust case, Apple employees are responsible for maintaining their own documents such as emails, memos, and voicemails. In other words, there is no company-wide policy for archiving, saving, or deleting these documents. ... An e-discovery lawyer, who asked not to be named because his employer (a firm you probably have heard of) doesn't want him speaking to the press, explained the basic legal requirements surrounding email and document retention to The Standard. "If litigation is ... Continue Reading

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