Gibbons Law Alert

Gibbons Law Alert

Tagged: ESI

Reeling in Fishing Expeditions: Proposed Amendments to the Federal Rules Are Aimed at Narrowing the Scope of Discovery and Increasing Judicial Management

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Posted in E-Discovery: Legal Decisions and Court Rules

On September 10, 2013

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.

Father’s “Lifestyle” as Portrayed on Internet Causes Dramatic Increase in Child Support Obligations

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Posted in E-Discovery: Legal Decisions and Court Rules

On August 19, 2013

A recent New Jersey Appellate Division decision in Fitzgerald v. Duff provides a potent reminder that if you are involved in litigation, anything you do or say online might be used against you in court. The Fitzgerald proceedings concerned a father’s attempt to modify a previously-entered child support order by submitting his 2011 income tax return, which reported a taxable income of $21,000 from a cash tattoo business. In opposition, the child’s legal custodian filed a certification opposing modification of the support order, suggesting that much of the defendant’s income was unreported, and that a much higher child support obligation was warranted. To support that position, the custodian submitted copies of defendant’s web site, Facebook photographs, and various social media comments evincing his success. The website identified multiple locations at which the tattoo parlor operated and plans for its imminent expansion, featured three staff tattoo artists, and advertised that defendant provided tattoo services for professional football players. The Facebook photographs depicted defendant throwing $100 bills, his speed boat, a 2011 Chevrolet Camaro (plaintiff also maintained defendant owned a Lincoln Navigator), his elaborate tropical wedding, and accompanying diamond engagement and wedding bands. Finally, comments from the father’s Myspace page included statements that in four hours he earns $250, his schedule had “been packed so [he could] pay for this wedding,” and that he purchased television advertising spots.

Court Denies Direct Access to Computer, Phones, and Email Account Absent a Finding of Improper Conduct or Non-Compliance With Discovery Rules

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Posted in E-Discovery: Legal Decisions and Court Rules

On July 9, 2013

In a recent decision in Carolina Bedding Direct, LLC v. Downen, United States Magistrate Judge Monte C. Richardson shed light on the limitations placed on discovery by Federal Rule of Civil Procedure 26 and the circumstances under which a requesting party will be denied wholesale access to a responding party’s computer, cell phone, and email account. The decision also reinforces that courts are unlikely to question a responding party’s certification of compliance with discovery requests absent a real showing of improper conduct, even if it is shown that the responding party failed to produce its own email and text messages that were later produced by another party.

Show Your Work: Google Ordered to Produce Search Terms and Custodians Used When Responding to Apple’s Subpoena

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Posted in E-Discovery: Legal Decisions and Court Rules

On May 23, 2013

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.

Update of Proposed Rule Changes: A Universal Federal Sanctions Standard for the Failure to Preserve ESI Could be a Reality

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Posted in E-Discovery: Legal Decisions and Court Rules

On May 6, 2013

The United States Courts’ Advisory Committee on Civil Rules (“the Committee”) has proposed various amendments to the Federal Rules of Civil Procedure that, if adopted, will profoundly affect the range and scope of sanctions a court may impose for failures to preserve electronically stored information (“ESI”). F.R.C.P. 37(e), which currently addresses sanctions in those instances, is one of several rules slated for amendment.

An International Standard for E-Discovery?

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Posted in Technology Developments and Issues

On March 18, 2013

The International Organization for Standardization (“ISO”) is forming a new e-discovery committee tasked with the development of standards for e-discovery processes and procedures. The international standard “would provide guidance on measures, spanning from initial creation of [electronically stored information] through its final disposition which an organization can undertake to mitigate risk and expense should electronic discovery become an issue” according to a draft committee charter.

A Bad “Day” for a Company Whose In-House Attorney Failed to Properly Preserve Relevant Documents

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 28, 2013

An Arizona federal court has determined that default judgment, an adverse instruction and monetary damages are proper remedies for in-house counsel’s failure to take the proper steps to preserve potentially relevant evidence after receiving notice of potential litigation. In Day v. LSI Corporation, Docket No. CIV-11-186-TUC-CKJ, the United States District Court for the District of Arizona granted, in part, the plaintiff-employee’s motion for entry of a default judgment and imposed additional sanctions against the defendant-employer, concluding that the employer’s in-house attorney had a “culpable mind” and acted willfully in failing to carry out the company’s preservation obligations.

New York State Courts Look to Adopt Rules Requiring Parties to Discuss E-Discovery at the Outset of Litigation

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Posted in E-Discovery: Legal Decisions and Court Rules

On January 31, 2013

The E-Discovery Working Group has recommended changes to the New York State Court rules concerning e-discovery that would significantly expand litigants’ obligations to confer concerning anticipated e-discovery issues. Currently, only the rules that govern cases pending before the Commercial Division require that parties confer about expected e-discovery issues at the outset of a litigation. (See Section 202.70 Rule 8 of the Uniform Rules). The E-Discovery Working Group has not only recommended that this rule be expanded to include all New York State Courts, but also to provide specific guidance concerning what e-discovery issues ought to be discussed by the parties. These issues include identifying potentially relevant categories of data and relevant computer servers, implementing measures to preserve relevant information, agreeing to procedures for parties to recall any privileged information that they provide by accident and discussing the likely cost and allocation of e-discovery between the parties.

Florida Joins the Growing Number of States That Have Adopted Specific Rules Addressing Electronic Discovery

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Posted in E-Discovery: Legal Decisions and Court Rules

On October 22, 2012

Effective September 1, 2012, Florida joined the long list of states that have adopted specific rules of procedure governing electronic discovery, which follows the July 5, 2012, announcement by the Supreme Court of Florida of its proposed amendments to seven civil procedure rules aimed at addressing the specific dilemmas facing litigants when e-discovery is sought. Florida’s Supreme Court approved and adopted the amendments in a formal opinion issued on July 5, 2012. While these amendments generally mirror the amendments to the Federal Rules of Civil Procedure first adopted by the United States Supreme Court in 2006, they diverge from the Federal Rules in some critical areas.

“Trust me, I know what I’m doing!” – Court Outlines Perils of Custodian Self-Collection and Inadequate Keyword Searches

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Posted in E-Discovery: Legal Decisions and Court Rules

On September 21, 2012

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.”

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