Author Archives: Dennis Kiker
Allergies, E-Discovery and Karma: Yes, The Rules Apply to Law Firms, Too
For many years, I was pretty unsympathetic to allergy sufferers. After all, it was only allergies for heaven’s sake. How bad could it be? Well, after 12 years of allergy-free living in Virginia, I learned how bad it could be. Virtually overnight, I lost my voice, couldn’t sleep, and found myself walking around in a daze struggling to breathe. That was last spring. This year, with allergen counts hundreds of times their normal levels, well, let’s just say that Karma paid me another unfriendly visit. So, when I read Pouncil v. Branch Law Firm, Case No. 10-1314-JTM-DJW (D. Kan. Mar. …
[ CONTINUE READING ]
Don’t Hold Your Breath: New Federal E-Discovery Rule Amendments Likely Years Away – Again
The Federal Advisory Committee on Rules of Civil Procedure met on March 22 and 23, 2012 to discuss potential amendments to the electronic discovery rules, continuing a process that began in May, 2010. At the meeting, the Advisory Committee provided input to the Discovery Subcommittee on a number of e-discovery issues, including whether and in what manner to revise the rules to address preservation of evidence and the scope of discovery. The Discovery Subcommittee had decided to focus its efforts on revising the spoliation sanctions provisions of Rule 37 rather than on a more extensive preservation rule. However, a number …
[ CONTINUE READING ]
E-Discovery Lawyers – Part II
Any lawyer that has been in practice for a few years will have become familiar with having to say, “I’m not that kind of lawyer.” Happens to me all the time. I got a call the other day from a veteran seeking help recovering benefits that he says were wrongfully denied. “I’m not that kind of lawyer,” I heard myself say. “Know anything about taxes?” “Should I set up an irrevocable trust for my grandson?” “My daughter just got her third DUI…” “I’m not that kind of lawyer.” It occurred to me after re-reading last week’s post (yes, I re-read …
[ CONTINUE READING ]
I Want an E-Discovery Lawyer for My E-Discovery Project
It occurred to me recently what unusual specimens some of my partners are. Oh, they look ordinary enough – some tall, some not, some female, some not. What is unusual is that they are an entirely new breed of attorney. Unlike most of us that have made our living through litigation, some of these lawyers have never drafted an interrogatory response, never argued in response to a motion to compel, never taken a deposition, in short, never done any of the things that we ordinarily associate with litigation. What kind of lawyers are these, you ask? They are e-discovery lawyers, …
[ CONTINUE READING ]
Missing LegalTech
I missed Legal Tech this year. For each of the past four years, I have made the trek to the zoo at the New York Hilton to see what was new in e-discovery, network, and, hopefully, meet someone that would like to hire me. (That’s really why we all go, isn’t it?) But, this year, I had to work. And, you know what? I really didn’t miss it all that much. The crowds, the vendors on the floor vying for your attention, the dozens of iPad give-a-ways…well, okay, I did miss it some, but not as much as I thought …
[ CONTINUE READING ]
Relevance: The Most Important Limitation on Discovery Abuse?
Last week, I had the opportunity to participate in a webcast reviewing the case law highlights from 2011. One of the topics we discussed was the certification requirement of Rule 26(g). In preparing for the webcast, none of the panelists, including me, thought that the rule had received much attention since Judge Grimm’s opinion in Mancia v. Mayflower Textile. Turns out we were wrong. A quick Westlaw search turned up at least 80 cases in 2011 alone in which Rule 26(g) was referenced. I did the math, and that averages more than one opinion every week, some of which are …
[ CONTINUE READING ]
Who Will Save E-Discovery? Say “Hello” to Big Data!
E-discovery is so 2010. Just about everywhere you turn, you see reasons to believe that the e-discovery heyday has passed and we are at last on the falling edge of the curve. Courts are quickly embracing the Model Order on E-Discovery in Patent Cases, severely limiting the amount of ESI that parties must produce in a given case. New technologies are helping companies to more accurately identify potentially relevant information, resulting in far less data being subject to review. Predictive coding is moving us towards the day when computers alone will review documents. Perhaps it is time to look for …
[ CONTINUE READING ]
The Duty to Preserve – When Should Lawyers Mistrust Their Clients?
I have been fortunate in my career to have really good clients. And I don’t mean that they pay their bills on time (which they do), but they are actually “good” clients, meaning that they don’t behave badly. I can honestly say that I am convinced each and every one of my clients has acted in good faith in responding to discovery requests in the cases on which I have worked. When I read cases like United Central Bank v. Kanan Fashions, Inc., 2011 WL 4396856 (N.D. Ill. Sep. 21, 2011), I feel like I should call each of them …
[ CONTINUE READING ]
The Legal Hold Notice is Privileged, but What About the Process?
This article won the LitigationWorld Pick of the Week. LitigationWorld is a free weekly email newsletter that provides helpful tips regarding electronic discovery, litigation strategy, and litigation technology. It is not an uncommon question: is my legal hold notice privileged? I’ve always contended that it is, and the court in Cannata v. Wyndham Worldwide Corp., 2011 WL 3495987 (D. Nev. Aug. 10, 2011) agreed. However, the question that comes up less often, but was also answered by the court, is whether the legal hold process is privileged. Again, I think the court got it right, but it is a cautionary …
[ CONTINUE READING ]
E-mail E-Discovery – Can I Have Attachments With That Order?
Abu Dhabi Comm. Bank v. Morgan Stanley, 2011 WL 3738979 (S.D.N.Y. Aug. 18, 2011) presents an interesting, but, I would have thought, pretty simple question: When a party produces e-mail, must it also produce non-privileged attachments? In a well-researched and thorough recommendation ultimately adopted by the court, the special master concludes that there is no “ironclad legal standard” governing production of e-mail attachments, and that there is some support for both sides of the debate. On the side of treating attachments as separate items for purposes of production, the opinion notes the following: Most courts require e-mails and their attachments …
[ CONTINUE READING ]
Thursday, May 24, 2012
Subscribe to our blog with