Litigation Best Practices

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. 

While requests for email communications and collections from hard drives and networks are standard in today’s litigation, a party’s text messages, and collections from mobile devices are oftentimes overlooked. A narrowly tailored motion to compel forensic exam can be a valuable discovery tool to analyze the data on a party’s mobile phone. This blog analyzes the factors that led a court in the Northern District of Illinois to order the forensic imaging and collection of a party's mobile phone.

ESI Agreements cover the full gambit of e-discovery issues, from preservation expectations to production specifications. Sometimes, these agreements include an overview of the process by which the parties will identify the universe of potentially responsive documents by using specific date ranges, identifying priority custodians and developing proposed search terms. Adding another layer of complexity, this discussion is often had in a vacuum before the parties even know how much data their clients have. Coming up with criteria that identifies the relevant documents, but is not overly broad, in this vacuum can be difficult. However, the process is important because the date range, custodians and terms will inevitably dictate how much data is collected, processed and reviewed, which can significantly affect any litigation budget.

Depo packs serve two purposes: (1) to help prepare your client’s witnesses and experts for their depositions by refreshing their recollection of specific events or communications and focusing their attention on issues that are central to the factual story and legal strategy; and (2) to assist the trial attorneys in preparing to depose the other side’s witnesses or defend their own witnesses. This blog provides an overview of depo packs and how they can be a tremendous benefit to the client as well as an effective tool for the attorneys deposing or defending depositions.