April 10th, 2017
In his recent opinion in Fischer v. Forrest, 14 Civ. 1304 (PAE) (AJP), 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017), Judge Peck declares that “It is time, once again, to issue a discovery wake-up call to the Bar in this District: the Federal Rules of Civil Procedure were amended effective December 1, 2015, and one change that affects the daily work of every litigator is Rule 34.” Can you name the three requirements the Judge lays out for responses and objections under amended Rule 34?
November 19th, 2015
In federal court—and in most state courts—parties must meet and confer at the beginning of the litigation to discuss various case management issues, and hopefully reach stipulated agreements about those issues. The discussions must address the discovery of electronically stored information, a subject that in too many cases causes needless amounts of disagreement, delay, expense, and overall angst among the litigants and counsel. Why is the negotiation of ESI stipulations so difficult?
October 2nd, 2015
My household owns an Audi A3 “clean diesel” car, which unfortunately turned out to be not-so-clean. So, I’ve been closely watching the news about the Volkswagen emissions testing scandal. (In case you haven’t followed the story, last month Volkswagen admitted to cheating on U.S. pollution tests for more than 500,000 diesel engine vehicles, by installing software called "defeat devices.” The software detects when the car is hooked up to an emissions testing system, and reduces emissions during the test; once out on the open road, the emissions ramp back up, and the cars spew as much as 40 times the permitted amount of pollutants. Affected cars include Volkswagen's Jetta, Beetle, Golf and Passat, and the Audi A3.
August 18th, 2015
Last year the State Bar of California Standing Committee on Professional Responsibility and Conduct issued two draft opinions answering the question “What are an attorney’s ethical duties in the handling of discovery of electronically stored information?” After receiving public comment on the drafts, the Committee recently issued its final version, Formal Opinion No. 2015-193. Even a highly experienced attorney may need some assistance in certain litigation matters involving ESI.
August 3rd, 2015
finds itself in the headlines of the mainstream media again. This time, the general public gets a chance to learn about the discoverability of text messages—and the potential consequences of evidence spoliation—thanks to Tom Brady and the “deflategate” scandal. (For those of you who don’t follow sports, “deflategate” refers to allegations that the New England Patriot’s quarterback played with deliberately deflated footballs in the team’s victory over the Indianapolis Colts in the AFC Championship.)