E-Discovery UpdateThis Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:a “wake-up call” by Magistrate Judge Peck of the Southern District of New York regarding boilerplate responses to Fed. R. Civ. P. 34 document requestsa Western District of New York decision finding that a requesting party’s discovery had “reached the point of diminishing returns” in rejecting plaintiff’s motion to compel the production of documents an Eastern District of Michigan ruling accepting defendant’s burden arguments regarding plaintiffs’ request for several years of data; ordering the parties to meet and confer to agree on a method for sampling data covering a six-month period; and, in the absence of such an agreement, allowing plaintiffs to obtain all the data for the six-month period at their own expense an Eastern District of Louisiana decision refusing to allow a direct examination of several of defendant’s computers and a server and requiring the parties to confer and develop a draft electronically stored information (ESI) protocol to govern the examination of those machines1. In Fischer v. Forrest, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017), Magistrate Judge Andrew Peck issued a “discovery wake-up call”

E-Discovery UpdateThe December 2014 Case Notes discuss the following:A Tennessee federal district court decision allowing plaintiff to use predictive coding to review two million documents notwithstanding defendant’s opposition, a case management order specifying use of search terms, and initial screening with such terms; A Northern District of California order ruling that the production of a “grab-bag” of documents in an unorganized manner violated Fed. R. Civ. P. 34 and ordering that the documents should be produced again in accordance with Rule 34’s requirements; A California state appellate court ruling upholding an award of attorneys’ fees against a non-party subpoena recipient for refusing to comply with the subpoena even though the issuer offered reasonable compensation for compiling the requested data; and A Northern District of California decision that a party could not withhold documents simply because the opposing party could not produce corresponding documents.1. In Bridgestone Americas, Inc. v. IBM Corp., 2014 WL 4923014 (M.D. Tenn. July 22, 2014), Magistrate Joe B. Brown allowed plaintiff to use predictive coding to review two million documents notwithstanding defendant’s opposition, plaintiff’s prior agreement to a case management order specifying use of search terms, and initial screening with such terms.

tead, the mindless machine righted itself, executed a 180-degree turn, and charged downhill toward the dazed Burgett. The mower’s blades caught Burgett’s foot, nearly amputating a toe in his front yard. Any respite was only temporary; as part of his medical treatment, Burgett ultimately lost two toes. There were no other witnesses, no one who could contest Burgett’s Terminator-like description of the lawnmower’s relentless bloodlust. Or were there?“You’ll know it when you see it.”Ted Lasso, S2 Ep 6Someone else was at the scene that day in 2010; or rather, something else. And whether it’s a lawnmower, a wheelchair, a surgical handpiece, or any other product at the center of a personal injury products liability suit, that allegedly defective product often contains information critical to the claims and defenses of the parties. In addition to being the single most important piece of evidence in such a case, the product can often supply key “testimony” to the details of the accident.Enter Fed. R. Civ. P. 34. In day-to-day civil litigation, Rule 34 defines and governs the production of documents, the lifeblood of discovery. But the rule also contains a lesser-used provision for a party to “inspect, copy, test, or sample … any designated tangible thing.” Rule 34(a)(1)(B). Such requests are not limitless; the rule demands reasonableness as to descriptions of the “thing” to be inspected and as to time, place and manner of inspection. Rule 34(b)(1)(A) and (B). In Robert Burgett’s case, the parties inspected the Bronco lawnmower twice in 2012. Ultimately, the lawnmower’s good working condition at the 2012 inspections had “something to say” to rebut Robert Burgett’s allegations. The specific parameters of a Rule 34 product inspection are as follows:Rule 34(a) – Within the scope of Rule 26(b) – Fed. R. Civ. P. 26(b)(1) is the “go to” rule for the scope of permissible discovery, with its familiar refrain: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any par

In our digital world, one might think that the production format of electronically stored information, or ESI, in civil litigation is no longer controversial, but recent court decisions make it clear that is not the case.While Federal Rule of Civil Procedure 34 encourages requesting parties to specify the form in which production is to be made, many fail to do so, and the rule provides for production in a form in which the information is ordinarily maintained — its native format — or in a “reasonably usable form.” The rule does not define “reasonably usable,” however, leading to disputes.Courts, in turn, have not consistently resolved these disputes, directing production in native format over objection in some cases while denying it in others.

E-Discovery UpdateThis update addresses the following recent developments and court decisions involving e-discovery issues:A New Mexico district court decision ruling that a producing party need only produce electronically stored information (“ESI”) in the form specified by the requesting party or in a reasonably usable form and need not label the documents pursuant to Fed. R. Civ. P. 34(b)(2)(E)(i) to correspond to categories in the request; A Northern District of Minnesota opinion rejecting plaintiff’s sanctions motion for deletion of cellphone ESI, citing lack of prejudice, plaintiff’s failure to pursue several opportunities to otherwise obtain the information, and the ineffectiveness of monetary sanctions in a $100,000 case in which each party had spent over $1 million; A Northern District of Texas order imposing an adverse inference instruction and monetary sanctions against a defendant who had used a bulk file changer to alter metadata on a produced computer to conceal the existence of an unproduced computer; and A District of Kansas decision ordering defendants to conduct a forensic review of potentially lost or deleted ESI after defendants failed to implement a litigation hold to preserve such evidence.1. In The Anderson Living Trust v. WPX Energy Production, LLC, 2014 WL 930869 (D. N.M. Mar. 6, 2014), District Court Judge James Browning held that a producing party need o

Third, they must state when documents will be produced (including the start and end date of a rolling production). Fed. R. Civ. P. 34, Advisory Committee Note, 2015 Amendment. In recognition of the need for more detailed guidance, the Sedona Conference — an influential e-discovery think tank composed of jurists, lawyers (from both sides of the aisle), experts and academics — has once again stepped in to fill the void, publishing its “Federal Rule of Civil Procedure 34 Primer” for public comment.

that spending going toward eDiscovery, corporate legal teams can add enormous value to their organizations by improving their eDiscovery workflows. There are plenty of tactics that can help organizations increase their efficiency in evidence collection and document review, but one often-overlooked cost center in eDiscovery is document production.In this post, we’ll take a closer look at document production, starting with what it is and how it fits into the overall eDiscovery process. We’ll then describe the various forms of document production and review what the Federal Rules of Civil Procedure (FRCP) say about it. Finally, we’ll set out a few of the most common challenges associated with document production and share five best practices you can use to streamline your organization’s document production workflows, along with technology that can help.ContentsWhat is document production?How document production fits into the overall eDiscovery processThe forms of document productionWhat FRCP 34 says about document productionThe most common challenges of document production5 best practices to improve document productionUse modern technology to streamline ESI production workflowsWhat is document production?Document production occurs when a party to a legal proceeding provides discoverable information—digital or otherwise—to the opposing party, whether by sharing electronic files, making information or physical evidence available for inspection, or producing copies of documents.Document production is the means by which the parties to a litigation matter share information, gather evidence in support of their case, and learn what evidence their opponents will base their own case on.A party may request the production of paper documents or digital information via a request for production or subpoena. The parties may be producing requested documents either during a specific limited period or on a rolling basis as new facts come to light.With this definition in mind, let’s talk about

Indeed, the business may be subject to severe spoliation sanctions under FRCP 37(e) if potentially relevant documents and ESI are subsequently deleted or lost, such as a monetary penalty, an adverse inference instruction to a jury or even striking of the party’s pleadings.To the extent you have any doubt, a relevant and non-privileged recording of a videoconference is discoverable ESI. Under FRCP 34(A)(1)(a) and its state-law analogs, a party must produce in response to a proper request “[a]ny designated documents or electronically stored information —including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form . . . .” (Emphasis added). The 2006 Advisory Committee notes on FRCP 34 further explained the broad and expansive scope of what is covered by this language:Discoverable information often exists in both paper and electronic form, and the same or similar information might exist in both.

Just over a year ago, I authored a Product Liability Advocate blog entry and a Law360 article explaining appropriate methods for asserting objections under Federal Rule of Civil Procedure 34, as amended on December 1, 2015. Last week, Judge Andrew J. Peck, U.S.M.J. of the Southern District of New York, issued an order that in his court any discovery objections that fail to comply with Rule 34 of the Federal Rules of Civil Procedure, as amended on December 1, 2015, will be deemed waived:The December 1, 2015 amendments to the Federal Rules of Civil Procedure are now 15 months old.

Rule 34 provides that “[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form” and “[a] party need not produce the same [ESI] in more than one form.” Id. at *3 (quoting Fed. R. Civ. P. 34(b)(2)(E)(ii)-(iii)). The court found that the first subpoena issued to PeaceHealth did not specify a preferred form of production and that plaintiff did not seek production in native format until after PeaceHealth had produced all of the responsive documents.