E-Discovery Best Practices

  • Legal Updates

    The E-Discovery Problem of “Modern” Attachments: Case Trends in the Production of Hyperlinked Documents

    Have you ever given much thought to what constitutes a “family” of documents when producing electronically stored information (“ESI”)?  Even if you are an E-discovery attorney, you very well may not have. After all, it is pretty straight forward, isn’t it?  An email and all its attachments are a document family. Sometimes, you have a document with embedded files or images that may be split off into separate documents in the collection or processing process. That document and its embedded files are a document family. And . . . that’s pretty much it, right?  Well, not so fast. As cloud storage and collaboratively shared documents become more popular, we are seeing increasing numbers of emails that have hyperlinks to documents rather than conventional attachments.  So, are hyperlinked documents part of a family?  How are the courts handling these issues?

  • Legal Updates

    The Legal Competency Missing from Legal Education: Law School Curricula and E-Discovery

    As the amount of electronically stored information (“ESI”) continues to grow at an exponential rate, basic E-Discovery knowledge becomes increasingly essential for litigators and legal professionals alike across a variety of practice areas. And yet, it does not appear that law schools are keeping up with E-Discovery’s ever-growing consequence. While a handful of law schools do offer standalone E-Discovery courses, it is far from the norm. Mere passing references to E-Discovery in higher education are inadequate to prepare future lawyers for the realities of the legal profession in this digital age.

  • Man in a suit holding a book titled "Civil Procedure Rules"
    Legal Updates

    We Hold These Rules to Be Self-Evident: Document Review, Relevance, and the Federal Rules of Civil Procedure

    Sometimes, an argument or position may seem so self-evident or apparent that parties proceed on the assumption that it is correct without ever actually litigating the issue. Should a party decide to contest the issue, however, it can be difficult to find authority in support of the proposition. Such was the case in a recent decision involving an ESI protocol issued by the United States District Court for the Southern District of New York in United States ex rel. M. Frank Higgins & Co. v. Dobco, Inc., No. 22-cv-9599, 2023 WL 5302371 (S.D.N.Y. Aug. 17, 2023).  The parties there disagreed as to how searches for ESI should be conducted. The Court, in resolving their dispute, examined the parties' obligations to produce ESI under Federal Rules of Civil Procedure 26 and 34. 

  • Picture of a monitor showing four video feeds from security cameras beside a security camera that has a red light to indicate it is recording.
    Legal Updates

    When The Timing of Your Spoliation Motion Can Be As Important As Its Substance

    A motion for an adverse inference was denied in Pratt v. Robbins, et al. where Defendants failed to preserve or produce a video that might have contained pivotal evidence going to the heart Plaintiff’s civil rights claim for excessive force.  Plaintiff argued that Defendants spoliated evidence by failing to produce the video footage that may have recorded the use of force at issue.   A party seeking spoliation sanctions bears the burden of proving all of the elements of Rule 37(e), and under Fourth Circuit precedent is generally held to a clear and convincing standard. Plaintiff’s decision to suddenly cry foul on the eve of trial did not go over well with the Court.

  • Danger
    Legal Updates

    The Pitfalls of Negotiated Preliminary Injunction Orders

    Sunlight Financial L.L.C. v. Hinkle, et al., 2022 WL 17487686 (S.D.N.Y. Dec. 7, 2022) highlights the importance of negotiating strong stipulation orders that protect your client's interests. In this case, the Stipulated Amended Preliminary Injunction Order was overly broad and failed to carve out information that the defense believed to be the confidential, proprietary, or trade secret information of third parties. As a result, the corporate defendant was required to produce documents for forensic examination that had questionable relevance to the specific allegations of the Plaintiff and exposed the defendant to potential future litigation.

  • ChatGPT
    Legal Updates

    ChatGPT and E-Discovery: Match Made in Heaven or Rocky Roads Ahead?

    New technologies are being created and utilized every year. The most significant developments lately are the rise of chatbots - software applications that allow for online chat conversation via text or text-to-speech, without any direct contact with a human operator. Currently, the chatbot garnering the most attention is OpenAI’s ChatGPT program. This article will focus on this technology and how it works either for or against the E-Discovery review process.